Dismissed

Shri. Shabbir Ghorikhan S/O Mohammad v. the Divisional Controller

Karnataka HC4 Sept 2024WP/103513/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an Industrial Tribunal's award reducing the petitioner's pay increments for causing a fatal accident. The court held the departmental inquiry was fair and the punishment proportional to the gravity of misconduct.

What did the court decide?

The writ petition filed to quash the Industrial Tribunal award and direct payment of withheld increments was dismissed.

Shri. Shabbir Ghorikhan S/O Mohammad Vs… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC-D:12753 WP No. 103513 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V.HOSMANI

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WRIT PETITION NO.103513 OF 2018 (L-KSRTC)

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BETWEEN:

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SHRI SHABBIR GHORIKHAN S/O. MOHAMMAD, AGE ABOUT: 57 YEARS, OCC: DRIVER, R/O: 7^TH CROSS, NEW VEERBADRANAGAR, BELAGAVI.

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…PETITIONER

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(BY SRI RAVI HEGDE, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER, N.W.K.R.T.C., BELAGAVI DIVISION, NEAR CITY BUS STAND, BELAGAVI.

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…RESPONDENT

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(BY SMT.VEENA HEGDE, ADVOCATE)

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI 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 WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE AWARD PASSED IN ID NO.69/ 2012 DATED 28.10.2014 VIDE ANNEXURE-"E" AND ALSO THE ORDER PASSED ON ISSUE NO.1 IN ID NO.69/2012 DATED 04.08.2014 VIDE ANNEXURE-"C" BOTH ARE ON THE FILE OF PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, HUBBALLI. CONSEQUENT UPON QUASHING THE AFORE SAID AWARD AND ORDER, DIRECT THE RESPONDENT TO RELEASE THE INCREMENTS WITHHELD BY THEM AND ETC.,

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THIS WRIT PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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Challenging award dated 28.10.2014 passed by Industrial Tribunal, Hubballi (for short, ‘Tribunal’) at Annexure-E and order dated 04.08.2014 on Issue no.1 in I.D.no.69/2012 at Annexure-C, this writ petition is filed.

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Sri Ravi Hegde, learned counsel for petitioner submitted that petitioner was working as Driver in respondent-Corporation when he was issued with Articles of Charge on 23.06.2008 alleging that he had committed misconduct of causing a fatal accident on 02.03.2008 while driving Corporation bus. It was submitted, petitioner had submitted his objections to Articles of Charge. Thereafter, Enquiry Officer was appointed. It was submitted, before Enquiry Officer, petitioner appeared. Thereafter, Enquiry Officer recorded evidence of management. It was submitted, though in Articles of Charge, respondent-management had referred to only four documents, during course of enquiry, they had relied upon fourteen documents and adequate opportunity was not provided to petitioner. It was submitted, though Regulation 23 of Karnataka State Road Transport Corporation Servants (Conduct and Disciplinary) Regulations,

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1971 to be specific, Regulation 23 (15, 17 and 18) provided procedural protection, same were violated and enquiry concluded.

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Elaborating same, it was submitted Regulation 23(15) stipulated where management intended to rely on evidence not included in list, on demand by employee, a copy of list of further evidence proposed to be produced were required to be made available to him and an adjournment of atleast three clear days before granting permission for production of such additional evidence was required to be granted. It was submitted, without following such procedure, Enquiry Officer had recorded evidence. It was further submitted as per Regulation 23(17), Enquiry Officer was required to provide opportunity to workman to lead evidence. Enquiry Officer had apparently skipped said step.

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Regulation 23(18), upon conclusion of recording of evidence, in cases where delinquent employee had not examined himself, Enquiry Officer was mandated to inform delinquent employee generally on circumstances appearing against him in evidence so as to enable him to offer

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explanation. It was submitted said step was also omitted. Therefore, very conduct of enquiry was not fair and proper. Though petitioner had objected on said grounds while recording finding on preliminary issue no.1, Tribunal had cursorily overlooked same. Said finding was specifically questioned.

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Even on punishment, it was submitted, misconduct alleged was causing fatal accident, which had also led to initiation of criminal prosecution but ended in his acquittal. It was submitted, when entire material referred to in departmental proceedings was considered by Court, acquittal in criminal prosecution proceedings, ought to have led to discharge of petitioner from charges. On said grounds sought for allowing writ petition. In support of his submission, learned counsel sought to rely upon decision of this Court in W.P.no.68782/2010 disposed of 21.09.2020, wherein for violation of procedure contemplated in Regulation 23(15, 17 and 18), this Court had remanded matter back to Labour Court for fresh consideration after reversing finding on issue no.1.

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On other hand, Smt.Veena Hegde, learned counsel for respondent-Corporation sought to justify award and order. At outset, it was submitted, order sheet of enquiry proceedings produced at Annexure-D by petitioner would indicate that management had led evidence by examining one witness as MW1 and getting marked Exhibits M1 to M14. Thereafter, petitioner was granted opportunity of cross-examination and petitioner along with help of coemployee cross-examined management witness. Said crossexamination was after granting adjournment as sought for by petitioner. Thereafter, Enquiry Officer addressed delinquent employee. Based on his responses, Enquiry Officer had granted ten days’ time to delinquent employee for submitting his written statement of defence before submitting enquiry report.

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Based on same, and after issuing second showcause notice, disciplinary authority had accepted findings and passed order for reduction of three annual incremental stages with cumulative effect. Aggrieved, petitioner had sought reference. On reference, Tribunal had posted matter for enquiry on issue no.1. Entire enquiry records were

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NC: 2024:KHC-D:12753 WP No. 103513 of 2018

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produced before Tribunal. On consideration, Tribunal had answered issue no.1 in affirmative. On issues no.2 and 3, it observed that during course of enquiry, petitioner has stated that upon seeing victim cyclist coming on to main road, petitioner had slowed down bus and probably being frightened by loud horn of passing Truck, victim had fallen down and suffered accident. It was submitted, Tribunal had on appreciation of facts and circumstances had come to conclusion that reference did not merit consideration and rejected it. Said order did not call for interference.

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Heard learned counsel and perused writ petition record.

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From above, it is seen that petitioner is firstly challenging legality of order on preliminary issue regarding propriety of disciplinary proceedings. Main ground urged for said challenge is that, Articles of Charge issued to petitioner would refer to only four documents, whereas during departmental enquiry, management relied upon fourteen documents. While passing order on preliminary issue, Tribunal has observed that during disciplinary enquiry, petitioner was provided with assistance of a co-employee

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and after examination-in-chief of management witness, they had sought adjournment or opportunity for crossexamination. Thereafter on adjourned date of hearing, management witness was duly cross-examined without any plea of demurer. Grant of said adjournment has been considered as providing opportunity to delinquent employee to go through records and failure to record objections or seek for specific opportunity on additional documents, during course of departmental enquiry has been stated to satisfy with principle of fairness.

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Insofar as non-compliance with Regulation 23(18), Tribunal observed that petitioner failed to establish prejudice. Hon’ble Supreme Court in a decision in case of Sunil Kumar Banerjee Vs. State of West Bengal and others reported in (1980) 3 SCC 304, while interpreting a similar provision in paragraphs no.3 to 5, has held noncompliance by itself would not be sufficient to upset finding in disciplinary proceedings and petitioner would have to establish prejudice caused. Said ratio would reinforce conclusion of Tribunal.

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NC: 2024:KHC-D:12753 WP No. 103513 of 2018

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Insofar as punishment, there is specific contention regarding non-compliance with Regulations 23(15) and 23(17). Regulation 23(15) stipulates where additional evidence is sought to be led by management, if delinquent employee demands to furnish a list of further evidence to be proposed along with an adjournment of three clear days before permitting production of such evidence. In instant case, management has examined its witness on one day and got marked Exs.M.1 to M.14. There are no objections recorded at stage of marking additional documents. In any case, after examination-in-chief of management witness, on 24.09.2008, as sought for, an adjournment was granted. On 16.10.2008 i.e. after nearly 20 days, delinquent employee with help of co-worker duly cross-examined management witness. Same would by and large be complaint with purport and intent of Regulation 23(15).

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Insofar as non-compliance with Regulation 23(17), it is seen said Regulation would mandate provision

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for leading evidence by delinquent employee. It is seen that after conclusion of management evidence, enquiry officer

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has posed several queries to delinquent employee including whether delinquent employee intended to lead evidence on his behalf. Answer was ‘in negative’. Second query is about filing of written statement of defence. To which, delinquent employee answered ‘in affirmative’ and third question was about consent for closure of enquiry, which was answered ‘in affirmative’ by delinquent employee. Proceedings on said date has also been duly signed by delinquent employee and Co-worker.

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In view of above, when delinquent employee himself has stated that, he has no evidence to lead, it would not be open for him to contend denial of opportunity to lead evidence. It is seen, after conclusion of departmental enquiry, petitioner was issued with second show-cause notice along with enquiry report. Petitioner had submitted his representation against same on 15.07.2008, and in which such grounds were not urged. Thus, it has to be concluded that management has complied with requirement of fairness and propriety of disciplinary proceedings. Therefore, there would be no much substance in challenge against order on preliminary issue.

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Insofar as victimization and proportionality of punishment, it is seen that, for misconduct of causing fatal accident, petitioner was imposed with punishment, reducing of his basic pay by three annual increments permanently. Since, in Departmental Enquiry, findings on charges were ‘in affirmative’ and preliminary issue has also answered ‘in affirmative’, only scope of exercise of judicial review would be on proportionality. While passing order of punishment, it is seen that, disciplinary authority has taken note of default history. Incident in question in this case is of accident that occurred on 02.03.2008. Default sheet would indicate that, petitioner had earlier suffered order of dismissal from service for causing a fatal accident earlier. Thus, punishment now imposed appears reformative and would appear to be in light of gravity of charge held proved.

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Hon’ble Supreme Court in case of Kailash Nath Gupta Vs. Enquiry Officer and others reported in (2003) 9 SCC 480, has held power of interference with quantum of punishment would be extremely limited and based on wednesbury principles. There are no specific grounds taken about any relevant factor having been left out from

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consideration or about any irrelevant factor having been taken note of.

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Insofar as reliance placed by learned counsel on decision in W.P.no.68782/2010, same would have to be treated as a decision in peculiar facts and circumstances of case and in view of law laid down by Hon’ble Supreme Court which dealing with similar provision, decision of learned Single Judge would have to yield.

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For aforesaid reasons, I do not find any good grounds to interfere with impugned award.

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Writ petition is dismissed.

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Sd/(RAVI V.HOSMANI) JUDGE

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CLK,EM CT-ASC List No.: 1 Sl No.: 30

Shri. Shabbir Ghorikhan S/O Mohammad v. the Divisional Controller

Case brief

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Shri. Shabbir Ghorikhan S/O Mohammad v. the Divisional Controller

Case brief

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