Partly allowed

Sri. Hasansab S/O Basusaheb Daded v. the Management of Nwkrtc

Karnataka HC4 Jul 2024WP/101948/2017

Case brief

AI extract

What is this about?

High Court allowed writ petition held punishment removal of service was grossly disproportionate for trainee conductor relying on past minor infractions without notice allowed modification reducing penalty to fine mandatory reinstatement within two months.

What did the court decide?

Writ allowed in part; removal from service set aside; punishment reduced to fine equivalent to two months' salary; petitioner to be reinstated within two months.

Sri. Hasansab S/O Basusaheb Daded Vs the… — Labour and Industrial Disputes | Karnataka HC (2024)

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NC: 2024:KHC-D:9207 WP No. 101948 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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WRIT PETITION NO.101948 OF 2017(L-KSRTC)

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BETWEEN:

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SRI HASANSAB S/O. BASUSAHEB DADED, AGED: 35 YEARS, OCC: NIL, AT POST: LINGADAHALLI, TQ: INDI, DIST: VIJAYAPUR.

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…PETITIONER

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(BY SRI RAVI HEGDE, ADVOCATE)

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AND:

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THE MANAGEMENT OF NWKRTC, HAVERI DIVISION, REPRESENTED BY DIVISIONAL CONTROLLER, HAVERI DIVISION, HAVERI, TQ AND DIST: HAVERI.

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…RESPONDENT

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Digitally signed by V N BADIGER Location: High Court of Karnataka

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(BY SRI S.L.MATTI, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION OR ORDER, QUASHING THE AWARD PASSED BY THE LABOUR COURT, HUBBALI, DATED:15.04.2016 IN K.I.D.N0.03/2014 WHICH IS PRODUCED AS ANNEXURE-E AND ETC.,

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

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ORDER

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In this petition, the petitioner-workman is

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challenging the validity or otherwise of the order dated 15.04.2016 passed by the Labour Court, Hubballi in KID No.3/2014 by which the Labour Court dismissed the petition filed by the petitioner under Section 10(4-A) of the Industrial Disputes Act, 1947.

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Brief facts of the case are that, the petitionerworkman was appointed as a job trainee cum conductor in the respondent-Corporation on 05.01.2010 and he continued to work satisfactorily until he was removed by the order dated 31.12.2013. That a show cause notice was issued by the respondent-Corporation on 31.01.2012 alleging that the petitioner-workman while on duty on 10.06.2012 in the vehicle which was belonging to the respondent-Corporation, plying on the road of Bellary to Ranebennur, the same was intercepted by the inspectors at Ranebennur and found petitioner-workman possessing excess amount of Rs.315/-. Thereupon, offence memo was

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issued to the petitioner-workman alleging that he had attempted to pilfer the amount belonging to the respondent-Corporation and registered a case of excess cash against the petitioner-workman.

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On receipt of article of charge, petitionerworkman submitted a reply denying allegations. The petitioner-workman contended that he had issued tickets to all the passengers, however, due to non-availability of small denomination notes, he had written the same on the backside of the ticket of the passenger, who had forgotten to take the balance amount while getting down from the bus. As such, petitioner-workman was in possession of the said excess amount and that he had not committed any misconduct as alleged in the claim statement. Enquiry was instituted and he participated in the same. A report was submitted by the Enquiry Officer stating that the charge against the petitioner-workman was proved. Thereupon the Disciplinary Authority passed an order dated 31.12.2013 in which referring to the earlier cases of misconduct, the Disciplinary Authority decided to remove

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the petitioner- workman from the services. Aggrieved by the same, petitioner-workman filed the above claim petition before the Labour Court.

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The respondent-Corporation appeared and filed counter statement denying the contents of the claim petition and contended that a detailed report with relevant documents was submitted to the Disciplinary Authority which on conducting an enquiry in accordance with law, providing an opportunity to the petitioner- workman, had come to the conclusion that the workman had committed

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misconduct and based on the finding of the Enquiry Officer, the respondent-Corporation removed his name from the selection list of job trainee cum conductor, which is proper and justified. Hence, sought for dismissal of the claim petition.

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The Labour Court framed the following issues for its consideration:

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“1.Whether the domestic enquiry held against the claimant is fair and proper?

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NC: 2024:KHC-D:9207 WP No. 101948 of 2017

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Whether the respondent-Corporation is justified

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in removing the claimant from service w.e.f. 31.12.2013?

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Whether claimant is entitled for the relief claimed?

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What order or award?”

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Issue No.1 was held in the affirmative by

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separate order dated 07.01.2015. However, while answering issued No.2, the Labour Court recorded the evidence of the petitioner-workman who examined himself as WW1. No evidence was recorded on behalf of the Corporation, except producing the document at Exs.M1 to M17. The Labour Court on appreciation of evidence, has come to the conclusion that the articles of charges made against the petitioner-workman were proved and since the petitioner-workman is not a permanent employee, and considering his past records, punishment imposed by the Corporation was just and proper and declined exercising his discretion under Section 11(a) of the Industrial Disputes Act. Accordingly, dismissed the petition. Aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition taking the attention of this Court through the records submitted that the manner in which the enquiry is conducted was not meeting basic requirement of principles of natural justice. He further submits that the very framing of the charge against the petitioner, would indicate that the respondentCorporation was not clear as to the offence that was committed by the petitioner. He also submits that even according to the case of the petitioner, there was no pilferage or misappropriation of funds belonging to the Corporation. That the entire process of enquiry proceedings were commenced and concluded within few hours of 05.10.2012 and the Disciplinary Authority while imposing punishment as per the order dated 31.12.2013, relied upon extraneous consideration of the previous alleged misconduct of the petitioner and proceeded to remove the petitioner from the services. As regards the finding of the Labour Court of petitioner-workman being a trainee not being a permanent employee, it is the

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submission of the counsel for the petitioner that though the petitioner-workman was appointed as a trainee driver cum conductor, as per the order of appointment a period of training was only for a period of 2 years and the said provisions further provide that any further extension needs to be in writing and since no express order is passed, it is deemed that the petitioner-workman was put on probationary. He also draws attention of this Court to the last paragraph of the order dated 31.12.2013, in which it is stated that the respondent-Corporation had filed an application for transfer under Section 33(2)(b) of the Industrial Disputes Act, as there was general reference pending consideration under I.D.No.148/2005 besides a cheque for Rs.5368/- dated 31.12.2013 was also enclosed with the order of imposing punishment.

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Referring to the same, counsel for the petitioner vehemently submitted that the Labour Court without referring to these material aspects of the matter, has erroneously passed the order, which has resulted in perversity warranting interference in the matter at the

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hands of this Court. He also relies upon the judgment of the Apex Court in the case of Nicholas Piramal India

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Limited Vs.Harisingh reported in (2015)8 SCC 272 in support of his submission that the past record of the employee has to be brought to the notice of the employee during the enquiry and cannot be used as a tool to impose disproportionate punishment without affording opportunity to the workman to response to the same. Hence, seeks for allowing of the petition.

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In response, learned counsel for the

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respondent-Corporation justifying the enquiry, order of dismissal and the order passed by the Labour Court submitted that the petitioner was merely a trainee and he

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was not even entitled for enquiry, however, he was given benefit of enquiry by the Corporation and the same cannot be construed to mean the petitioner to be permanent employee. He further submits that the very facts revealed during the enquiry and admitted by the petitionerworkman of he having Rs.315/- excess in his possession, would indicate that he had indeed misappropriated the

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funds belonging to the Corporation and it was incumbent upon the petitioner-workman who have discharged his burden of proving the source of the said amount. It is his further submission that when the said petitioner-workman could produce copy of the ticket over which he had written amount of Rs.481/-, nothing prevented him from examining the passenger whom he had issued the ticket. He submits that being a trainee, he had involved in 22 cases which he had admitted during the crossexamination, as such, Disciplinary Authority relying upon the same while imposing the punishment cannot be found fault with. He submits that enquiry was commenced on 03.09.2012 and concluded on 05.10.2012. Thus, he submits that proper and sufficient opportunity is granted and the orders do not suffer from any perversity. Hence, seeks for dismissal of the petition.

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He also relied upon the judgment of the Division Bench of this Court in the case of Writ Appeal No.100383/2014 passed in the case of The Management of NEKRTC Vs. Raju S. Jaydi, wherein it

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is held that a trainee conductor cannot be equated to a conductor regularly appointed after completion of trainee course and another judgment in the case of North West Karnataka Road Transport Corporation Vs. Mahabaleshwar in Writ Appeal No.2596/2005 on the same point. Thus, he submits that there is no illegality or perversity in the order passed by the Tribunal warranting interference.

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Heard. Perused the records.

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There is no dispute of the fact that the petitioner was indeed appointed as a trainee cum conductor on 05.01.2010 and when intercepted on 10.06.2012, the petitioner was found in possession of excess cash of Rs.315/-.

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Relevant at this juncture to refer to the show cause notice dated 31.07.2012 produced at Ex.M6, wherein though the said document is titled, “�� ”, the same contained the charge and the explanation of the charge.

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Perusal of the said charge would reveal that on 10.06.2012 when the petitioner was discharging his duties en-route Bellary to Ranebennur, the said vehicle was intercepted by the officers of respondent-Corporation and found that he was holding unauthorised sum of Rs.315/-, as such, he had violated the Rules of the respondentCorporation. As rightly pointed out by the learned counsel for the petitioner, the said show cause notice do not whisper as to whether the said amount belonged to the Corporation or whether the petitioner had caused any financial loss or made any gain for himself? It only states that he was in possession of excess cash of Rs.315/-. Even during the enquiry that was conducted on 05.10.2012, to a specific question asked on behalf of the petitionerworkman to the Reporting Officer as to whether at the time of interception all the passengers were issued with the travel tickets? he has answered the same in the affirmative. In other words, it is not the case of the respondent-Corporation that the petitioner was guilty of not issuing the tickets and not collecting the charges which

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is generally referred to as ‘NINC’ and not even the case of not issuing the ticket after collection which is generally referred to as ‘NIAC’. Therefore, what requires to be seen is that, in the absence of foundational facts of misuse of his position /negligence, dereliction of duty etc., if a workman holds excess cash, in what category of offences would he fall in? It may only require an explanation to be given by the petitioner with regard to circumstances he being in possession of excess cash. It cannot be stretched to impute anything else including attributing his intention

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to cause loss to the Corporation or make undue gain thereof.

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As already noted above, it is not the case of Corporation of the workman misappropriating it. The petitioner has during the enquiry and in the reply to the show cause notice has indeed given an explanation of he writing on the back of the ticket issued to a traveler balance amount available to him, which the said traveler had not collected before getting down from the bus and he has also produced the copy of the said ticket. It is not the

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case of the Corporation that the said ticket was neither issued nor that the said ticket was created for the purpose of the said case. Merely because the petitioner did not examine the said traveler, production of the said ticket in the absence of any material to the contrary cannot be ignored. It is only the plausible explanation which is expected particularly in the absence of any allegation of misappropriation. It is in this context, material evidence has to be appreciated and viewed, which in the considered view of this Court has missed the attention of the Labour Court.

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As regards, heavy reliance is placed on by the Disciplinary Authority to the previous misconduct of the petitioner enlisted in the order of removal which is also taken note and relied upon by the Labour Court in dismissing the claim petition, relevant to refer to paragraph 30 of the judgment of the Apex Court in the case of Nicholas Piramal India Limited (supra), which reads as under:

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“30. Further, in State of Mysore v. K. Manche Gowda, this Court has held thus: (AIR p. 510, para 8)

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It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the enquiry officer is only recommendatory in nature and the final authority which scrutinises it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject-matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same."

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17. Though it is permissible for the Management to

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rely upon the previous conduct/case history of the employee while considering imposition of punishment, the Law warrants that the employee be offered with an opportunity to give explanation which is completely

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missing in the instant case. Besides perusal of the previous record also indicate that out of 22 cases listed there, only 1 case is with regard to NIAC, which is not issuing ticket after collection for Rs.9/-. The rest of cases are Not Issue Ticket Not Collected. The gravity of these misconduct, also should be borne in mind.

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Needless to state that the petitioner was a

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trainee driver cum conductor and there is possibility of he missing out issuing the ticket or collecting charges which is the case at the hand as emanating from the list of previous cases mentioned in the order of dismissal, without appreciating the nature of the previous cases, if one looks at 22 incidents, it may create an impression of the employee being habitual offender. But the nature of said offences offer no explanation of he committing deliberate offence of unduly enrich himself. It is perhaps for this reason, in all those cases, the respondent – Management had let him of by imposing fine. As such, the same would not lead any credence for imposing extremely

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disproportionate punishment / penalty of removal from service. But the offence involved in the subject matter of the case at hand, since the petitioner employee has given plausible explanation of he possessing excess cash by producing a ticket, which is not in dispute, as already noted above, this Court is of the considered view that imposition of punishment of removal of his name from the selection list of trainee cum driver conductor is grossly disproportionate, more so when he had put in just 2 years of service. Therefore, this Court is of the considered view

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that, the order passed by the Labour Court requires to be modified. Accordingly, the following:

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ORDER

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i. The writ petition is allowed in part;

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ii. The order passed by the respondentManagement dated 31.12.2013 removing him from service and so also the order of

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the Labour Court confirming the said order is set aside.

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iii. The punishment imposed is reduced to imposition of fine equivalent to two months of his last drawn salary.

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iv. The respondent authority shall reinstate

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the petitioner into service within a period of two months from the date of receipt of certified copy of this order and the aforesaid amount of fine shall be adjusted / recovered from the salary to be paid to the petitioner employee.

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v. Learned counsel at this juncture, relies upon the judgment of the Co-ordinate Bench of this Court in Writ Appeal No.100383/2014, wherein dealing with the issue of status of a trainee after completion of two years, the Co-ordinate Bench of this Court has held that, they are entitled to be put on probation automatically. Thus, referring to the

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same, learned counsel submits that, similar benefit be extended to the petitioner also. The petitioner has admittedly reported to the duty on 05.01.2010 and he was subjected to enquiry on 05.10.2012 and the removal order was passed on 31.12.2013. Considering these aspects of the matter, liberty is reserved to the petitioner to make a representation for continuity of service, if he is entitled to and the same shall be considered by the respondent authorities in accordance with the relevant rules.

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SD/JUDGE

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KGK,VNP/CT-ASC List No.: 1 Sl No.: 33

Sri. Hasansab S/O Basusaheb Daded v. the Management of Nwkrtc

Case brief

What is this about?

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Sri. Hasansab S/O Basusaheb Daded v. the Management of Nwkrtc

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