Dismissed

R Shivaraj v. the Divisional Controller

Karnataka HC2 Sept 2024WP/9103/2021

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition challenging an Industrial Tribunal award that upheld a departmental penalty reducing two service increments. The court held the Tribunal did not err in confirming the disciplinary authority's order as the workman had admitted giving documents to a relative who informed the press, withstanding the principle of preponderance of probability.

What did the court decide?

The writ petition was dismissed and the order of the Industrial Tribunal confirming the reduction of two increments was quashing retained.

R Shivaraj Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:35821 WP No. 9103 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.9103 OF 2021 (L-KSRTC)

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BETWEEN:

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R. SHIVARAJ S/O. RAMACHANDRE GOWDA AGED 55 YEARS, DRIVER, BADGE NO.3614, KSRTC DIVISIONAL WORKSHOP CHIKKAMAGALURU. ... PETITIONER

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(BY SRI SHEKAR L., ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER, K.S.R.T.C. CHIKKAMAGALUR DIVISION CHIKKAMAGALUR – 575 201. ... RESPONDENT

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(BY SRI SANJEEV B.L., ADVOCATE)

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Digitally signed by SHYAMALA 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 QUASH THE IMPUGNED AWARD DATED 27.04.2019 PASSED IN REF.165/2015 BY THE HON’BLE INDUSTRIAL TRIBUNAL, MYSORE, VIDE ANNEXURE-A TO THE WRIT PETITION; DIRECT THE RESPONDENT CORPORATION TO RESTORE THE INCREMENTS BY PAYING CONSEQUENTIAL BENEFITS ARISING OUT OF SETTING ASIDE THE ORDER OF PUNISHMENT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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Assailing the legality and correctness of the award dated 27.04.2019 in Ref.No.165/2015 on the file of the Industrial Tribunal at Mysore (hereinafter referred to as “the Tribunal” for the sake of convenience), whereby, the reference was rejected by the Tribunal.

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Articles of charges were issued to the workman stating that the workman without permission or sanction from the Corporation gave some articles, documents and information to the press and further, while he was working as trainer, he was supposed to give training to 4 to 6 drivers every day as per Rules and without showing any interest in his duty, he has given training to 29 drivers from 05.03.2007 to 27.03.2007, he has not submitted T.A. Bill in time. Further, that though salary is being paid in time, the workman has made allegation against the Corporation. Enquiry Officer was appointed, show-cause notice was issued to the workman with regard to giving information to the press and for dereliction of duty. The workman replied to the show-cause notice, the enquiry officer not being

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satisfied with the reply given, conducted enquiry and submitted the report, holding that the charges leveled against the workman is proved, the disciplinary authority considering the enquiry report and the material placed before it passed an order of punishment by reduction of two increments with cumulative effect.

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Workman raised dispute and the Government referred the matter to the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act, 1947 (“the ID Act” for short). The workman filed claim statement stating that the Corporation, without any misconduct on the part of the workman, has issued false articles of charges. The workman stated that there is no nexus between the workman and the charges, including the alleged publishing of news article in the newspaper and sought for setting aside the imposition of punishment of reduction of two increments with cumulative effect.

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The Corporation filed counter, inter alia, disputing

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the claim statement and contended that without permission

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or sanction from the Corporation, the workman has given some articles, documents and information to the press and further, while working as a trainer, he was supposed to give training to 4 to 6 drivers every day as per Rules, but he has trained 29 drivers during the period from 05.03.2007 to 27.03.2007. Enquiry Officer was appointed and show-cause notice was issued to the workman for giving information to the newspaper and dereliction of duty. The enquiry officer and the disciplinary authority by following the procedure and the principles of natural justice has rightly arrived at a conclusion that the charges leveled against the workman is proved and the imposition of punishment by the disciplinary authority does not warrant any interference.

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The Tribunal, on the issue of domestic enquiry,

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held that the domestic enquiry was fair and proper and thereafter, the parties let-in evidence on merits. The workman examined himself as WW.1 and got marked documents as Exs.M-1 to M-19. On the other hand, the management witness was examined as MW.1 and no documents were marked on their behalf.

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The Tribunal, vide impugned order, rejected the

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reference and held that the imposition of punishment by the disciplinary authority was just and proper and there is no perversity or illegality in the order passed by the disciplinary authority.

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Learned counsel for the petitioner-workman reiterating the grounds urged in the petition would mainly contend that:

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(i) The impugned order of punishment passed by the Tribunal is not a speaking order and when a serious allegation was made against the petitioner, the petitioner has submitted a detailed explanation and cross-examined the witness of the management before the disciplinary authority in detail. When the petitioner disputed the charges referred to in the articles of charges and submitted a detailed explanation both on the articles of charges and the enquiry report, the disciplinary authority ought to have given a reasoned order.

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(ii) The disciplinary authority has not even discussed

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the evidence available on record and summarily imposed the punishment and that the punishment order is not a speaking order.

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(iii) When the petitioner-workman has denied the allegations leveled against him, the burden is on the respondent-establishment to prove that the charges by examining the proprietor of the newspaper regarding who has given information to the proprietor and in the absence of the same, the Tribunal was not justified in confirming the order of the disciplinary authority.

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(iv) The award passed vide Annexure – A is not sustainable as the Tribunal has not appreciated the evidence available on record in accordance with law.

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Per contra, learned counsel appearing for the Corporation justifies the orders passed by the disciplinary authority and the Tribunal, and would contend that the newspaper extract at Ex.M-14 would clearly indicate the name of the workman and on whose pretext the

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articles/documents were published in the newspaper. Learned counsel for the respondent would contend that the reply submitted by the workman at the first instance clearly indicated that he had submitted the order to his relative and his relative might have informed to the newspaper, which aspect is totally absent in the claim statement of the workman. That the Tribunal, considering the nature of misconduct, has rightly held that the punishment imposed by the disciplinary authority is justified and there is no perversity and illegality in the order passed by the disciplinary authority, which warrants no interference by this Court.

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Having heard learned counsel for the parties, the point that arises for consideration is,

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“Whether the impugned order passed by the Industrial Tribunal warrants any interference in the present facts and circumstances of the case?

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Article of charges issued to the workman for his misconduct reads as under:

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“ ²æÃ ²ªÀgÁeï, ZÁ®PÀ, ©¯Éè ¸ÀASÉå 3613 EªÀgÀ ªÉÄÃ°£À DgÉÆÃ¥ÀUÀ¼ÀÄB-

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ZÁ®PÀ ¨ÉÆÃzsÀPÀgÁzÀ ¤ÃªÀÅ PÉÃAzÀæ PÀbÉÃj DzÉÃ±ÀzÀAvÉ PÀrªÉÄ PÉ.JA.¦.J¯ï. vÀAzÀ ZÁ®PÀjUÉ ¥Àæw¢£À 4 jAzÀ 6 ZÁ®PÀjUÉ PÉ.JA.¦.J¯ï. ªÀÄvÀÄÛ ¸ÀÄgÀPÀë ZÁ®£ÉAiÀÄ §UÉÎ vÀgÀ¨ÉÃw ¤ÃqÀ¨ÉÃQzÀÄÝ ¤ÃªÀÅ F vÀgÀ¨ÉÃw PÁAiÀÄðPÀæªÀÄzÀ°è AiÀÄªÀÅzÉÃ D¸ÀQÛ vÉÆÃgÀzÉÃ ¢£ÁAPÀ 5-3-07 jAzÀ 27-3-07 gÀªÀgÉUÉ PÉÃªÀ® 29 d£À ZÁ®PÀjUÉ ªÀiÁvÀæ vÀgÀ¨ÉÃw ¤ÃqÀÄªÀ ªÀÄÆ®PÀ PÀvÀðªÀåzÀ°è ¤®ðPÀëåvÀ£À vÉÆÃj¹gÀÄwÛÃj. n.J ©®è£ÀÄß ¤ÃªÀÅ vÀqÀªÁV ¸À°è¹zÀÄÝ F DgÉÆÃ¥ÀªÀ£ÀÄß ¸ÀºÁ ¸ÀA¸ÉÜAiÀÄ ªÉÄÃ¯É ºÁQgÀÄwÛÃj. ¥Àæw wAUÀ¼ÀÄ ¤ªÀÄUÉ ¸ÀA§¼À ¸ÀjAiÀiÁV ¥ÁªÀwAiÀiÁVzÀÝgÀÆ ¸ÀºÁ ¸ÀA§¼ÀªÀ£ÀÄß ¤Ãr®èªÉA§ ¸ÀÄ¼ÀÄî ºÉÃ½PÉ ¤ÃrgÀÄwÛÃj.

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¤ªÀÄä£ÀÄß ¸ÀPÀ¯ÉÃ±À¥ÀÄgÀ WÀlPÀPÉÌ vÀgÀ¨ÉÃw ¤ÃqÀ®Ä PÀ¼ÀÄ»¹zÀÄÝ

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CzÀ£ÀÄß ªÀUÁðªÀuÉ JAzÀÄ ©A©¹, ¸ÀA¸ÉÜAiÀÄ §UÉÎ vÀ¥ÀÅà avÀæt ¤Ãr ¸ÀA¸ÉÜAiÀÄ §UÉÎ PÉlÖ C©ü¥ÁæAiÀÄªÀ£ÀÄßAlÄ ªÀiÁrgÀÄwÛÃj.”

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Article of charges issued was for publication of articles, documents and information to the press and also that, while he was a trainer, there was dereliction of duty.

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The Labour Court held that the domestic enquiry conducted by the Corporation is fair and proper, and what remained before the Labour Court was, to consider whether the order of the disciplinary authority suffers from perversity and illegality, whether there was any victimization and whether the imposition of punishment is proportional to the proved misconduct. The workman examined himself as WW.1, he categorically deposed that he has not taken permission from the superiors for making any statement in the news paper before publishing. The workman denied about the press report being given and also about the confidential matters regarding TA Bills, some articles, documents and information furnished to the press.

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The Corporation has examined S.Basavaraj (enquiry officer) as MW.1, the enquiry officer stood the test of cross-examination and stated as to the issuance of charges and the report submitted, the enquiry officer deposed that there is a mention regarding issuance of notice to the witness and also, categorically deposed that the enquiry conducted was fair and proper, Learned counsel for the petitioner-workman would mainly urge that the orders passed by the disciplinary authrity is not a speaking order.

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On perusal of the order at Annexure – D would indicate that the disciplinary authority, while imposing the punishment of reduction of two increments, has given his reasons as under:

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“D¥Á¢vÀ ²æÃ. ²ªÀgÁeï, ZÁ®PÀ, ©¯Éè ¸ÀA.3613, ªÀÄÆrUÉgÉ WÀlPÀ EªÀgÀÄ aPÀÌªÀÄUÀ¼ÀÆgÀÄ WÀlPÀzÀPÀ°è ZÁ®PÀ ¨ÉÆÃzsÀPÀgÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀÄªÁUÀ ªÉÄÃ¯Á¢üPÁjUÀ¼À ¥ÀÆªÁð£ÀÄªÀÄw ¥ÀqÉAiÀÄzÉÃ C£À¢üPÀÈvÀªÁV ¥ÀwæPÉUÉ ¸ÀA¸ÉÜAiÀÄ zÁR¯ÁwUÀ¼À ¥ÀæwUÀ¼À£ÀÄß ¤Ãr ¸ÀA¸ÉÜAiÀÄ »jAiÀÄ C¢üPÁjUÀ¼À §UÉÎ ¸ÀÄ¼ÀÄî ªÀiÁ»wAiÀÄ£ÀÄß ºÁUÀÆ ¥ÀæZÉÆÃzÀ£ÁPÁj ºÉÃ½PÉUÀ¼À£ÀÄß ¤Ãr ¸ÀA¸ÉÜAiÀÄ ²¸ÀÄÛ ªÀÄvÀÄÛ £ÀqÀvÉ ¤AiÀÄªÀiÁªÀ½AiÀÄ£ÀÄß G®èAX¹gÀÄªÀ, ZÁ®PÀ ¨ÉÆÃzsÀPÀgÁVzÀÄÝPÉÆAqÀÄ PÉ.JA.¦.J¯ï. ªÀÄvÀÄÛ ¸ÀÄgÀPÀë ZÁ®£ÉAiÀÄ §UÉÎ D¸ÀQÛ vÉÆÃgÀzÉÃ PÀrªÉÄ ZÁ®PÀjUÉ vÀgÀ¨ÉÃw ¤ÃrgÀÄªÀ ªÀÄvÀÄÛ ¸ÀA¸ÉÜAiÀÄ §UÉÎ vÀ¥ÀÄà avÀæt ¤Ãr ¸ÀA¸ÉÜAiÀÄ §UÉÎ PÉlÖ

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11 -

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C©ü¥ÁæAiÀÄªÀ£ÀÄßAlÄ ªÀiÁrgÀÄªÀ §UÉÎ »jAiÀÄ WÀlPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ, aPÀÌªÀÄUÀ¼ÀÆgÀÄ EªÀgÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ. ªÀgÀ¢AiÀiÁzsÁgÀzÀ ªÉÄÃ¯É ¸ÀzÀj £ËPÀgÀjUÉ DgÉÆÃ¥À ¥ÀvÀæ eÁgÀUÉÆ½¹zÉ D¥Á¢vÀgÀÄ DgÉÆÃ¥À ¥ÀvÀæPÉÌ GvÀÛgÀªÀ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ.

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¥ÀæPÀgÀtzÀ ¸ÀvÁå¸ÀvÀåvÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À®Ä ºÁUÀÆ D¥Á¢vÀjUÉ vÀªÀÄä «gÀÄzÀÞzÀ DgÉÆÃ¥ÀUÀ½AzÀ ¸ÀAgÀQë¹PÉÆ¼Àî®Ä CªÀPÁ±À ¤Ãr ¥ÀæPÀgÀtªÀ£ÀÄß «ZÁgÀuÉUÉ M¼À¥Àr¸À¯ÁVvÀÄÛ. «ZÁgÀuÁ¢üPÁjUÀ¼ÀÄ ¸ÀA¸ÉÜAiÀÄ ¤AiÀÄªÀiÁªÀ½AiÀÄAvÉ D¥Á¢vÀjUÉ £ÁåAiÀÄAiÀÄÄvÀªÁzÀ CªÀPÁ±ÀUÀ¼À£ÀÄß ¤Ãr «ZÁgÀuÉ £ÀqÉ¹ D¥Á¢vÀgÀ ªÉÄÃ¯É DgÉÆÃ¥À ¥ÀvÀæzÀ°è ºÉÆj¹gÀÄªÀ DgÉÆÃ¥ÀUÀ¼ÀÄ ¥ÀÆtð ¸Á©ÃvÁVgÀÄªÀÅzÁV «ZÁgÀuÁ ¤tðAiÀÄ ªÀgÀ¢ ¸À°è¹gÀÄvÁÛgÉ. C¥Á¢vÀgÀÄ vÀªÀÄä ªÉÄÃ°£À DgÉÆÃ¥ÀªÀ£ÀÄß ¥ÀÆtð C®èUÀ¼ÉAiÀÄ®Ä «ZÁgÀuÁ ¸ÀªÀÄAiÀÄzÀ°è AiÀiÁªÀÅzÉÃ §®ªÁzÀ ¥ÀÆgÀPÀ ¸ÁQë, zÁR¯ÁwAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹gÀÄªÀÅ¢®è. «ZÁgÀuÁ ªÀgÀ¢AiÀÄ£ÀÄß D¥Á¢vÀjUÉ eÁjUÉÆ½¹zÀÄÝ, D¥Á¢vÀgÀÄ GvÀÛgÀ ¸À°è¹zÀÄÝ, ªÀÄvÀÄÛ vÀªÀÄä DgÉÆÃ¥ÀUÀ¼À£ÀÄß C®èUÀ¼ÉAiÀÄÄªÀAvÀºÀ AiÀiÁªÀÅzÉÃ CA±ÀUÀ¼À£ÀÄß w½¹gÀÄªÀÅ¢®è.

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£Á£ÀÄ «ZÁgÀuÁ¢üPÁjUÀ¼À «ZÁgÀuÁ ¤tðAiÀÄªÀ£ÀÄß M¦àzÀÄÝ, zÁR¯ÁwUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É D¥Á¢vÀgÀ ªÉÄÃ°£À DgÉÆÃ¥ÀUÀ¼ÀÄ ¸Á©ÃvÁVgÀÄªÀÅzÀjAzÀ zÁR¯ÁwUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É D¥Á¢vÀgÀ£ÀÄß vÀ¦àvÀ¸ÀÜgÉAzÀÄ wÃªÀiÁð¤¹, CªÀgÀÄ vÀªÀÄä ªÀvÀð£ÉAiÀÄ°è ¸ÀÄzsÁgÀuÉ ºÉÆAzÀ®Ä CªÀPÁ±À ¤Ãr, F ¥ÀæPÀgÀtzÀ°è ®WÀÄ ²PÉë «¢ü¸À®Ä wÃªÀiÁð¤¹ F PÉ¼ÀPÀAqÀAvÉ DzÉÃ²¹gÀÄvÉÛÃ£É.”

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From the perusal of claim statement, it evidences

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that the workman has not even raised a ground about the

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order passed by the disciplinary authority, is not a speaking order and in the absence of the same, the said question did not fall for consideration before the Tribunal. The Tribunal, while considering the material placed, more importantly, Ex.M-14 which indicates the name of the petitioner being stated in the newspaper for having published the article and considering the same, the enquiry officer held that the charges leveled against the workman was proved. The disciplinary authority, while considering the entire evidence placed before it and the publication, arrived at a conclusion that the charges leveled against the workman has been proved and imposed the punishment of reduction of two increments with cumulative effect.

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The other contention of the petitioner is that the burden is on the respondent-corporation to prove the charges by examining the proprietor of the newspaper. In fact, the burden is on the workman to discharge that he has not misconducted himself on the article of charges framed against him, the reply submitted by the workman is to the effect that the article published was handed over to his

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relative and his relative might have informed the proprietor of the newspaper. The relevant portion of the reply submitted by the workman reads as under:

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“£Á£ÀÄ AiÀiÁªÀÅzÉÃ E¯ÁSÁ zÁR¯ÁwUÀ¼À£ÀÄß ¥ÀwæPÉAiÀÄªÀjUÉ ¤ÃqÀzÉ EzÀÄÝ £Á£ÀÄ £À£ÀUÉ ¤ÃrzÀAvÀºÀ PÀbÉÃj DzÉÃ±ÀzÀ ¥ÀæwAiÀÄ£ÀÄß ªÀiÁvÀæªÉÃ £À£Àß ¸ÀA§A¢üPÀgÀ ºÀ¸ÀÛ ¤ÃrgÀÄvÉÛÃ£É. CzÀÄ £À£ÀUÉ §AzÀAvÀºÀ ¥ÀæwAiÀiÁVzÀÄÝ CzÀ£ÀÄß £À£Àß ¸ÀA§A¢üPÀgÀÄ ¥ÀwæPÁ ¥ÀæPÀl£ÉUÉ ¤ÃrzÀÄÝ EzÀgÀ°è £À£Àß vÀ¥ÉàÃ£ÀÆ EgÀÄªÀÅ¢®è EzÀPÉÌ ¸ÀzÀj ºÉÃ½PÉAiÀÄ£ÀÄß £Á£ÉÃ ¤ÃrgÀÄvÉÛÃ£É JA§ÄzÀPÉÌ DqÀ½vÀ ¥ÀgÀ ¸ÁQëzÁgÀgÀÄ AiÀiÁªÀÅzÉÃ ¸ÁQëAiÀÄ£ÀÄß ¥ÀwæPÉAiÀÄ ¸ÀA¥ÁzÀPÀjAzÁUÀ°Ã ¥ÀwæPÁ ¥Àæw¤¢üUÀ½AzÁUÀ°Ã ¥ÀqÉAiÀÄ¢gÀÄªÀÅzÉÃ EzÀPÉÌ ¸ÁQëAiÀiÁVgÀÄvÀÛzÉ. £À£ÀUÉ vÉÆAzÀgÉ ªÀiÁqÀ¯ÉAzÀÄ CªÀgÉÃ ¥ÀwæPÉUÀ½UÉ F «ªÀgÀªÀ£ÀÄß ¤ÃrgÀ§ºÀÅzÁVgÀÄvÀÛzÉ. ¢£ÁAPÀ 5- 3-2007 jAzÀ 27-3-2007 gÀªÀgÉUÉ PÉÃªÀ® 29 d£À ZÁ®PÀjUÉ ªÀiÁvÀæ vÀgÀ¨ÉÃw ¤ÃqÀÄªÀ ªÀÄÆ®PÀ PÀvÀðªÀå ¯ÉÆÃ¥ÀªÉ¸ÀVgÀÄwÛÃj JAzÀÄ ºÉÃ½zÀÄÝ EzÀgÀ°è £À¤ßAzÀ vÀ¥ÁàVgÀÄªÀÅ¢®è.”

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(Emphasis supplied)

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17. In light of clear and unequivocal admission of the

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workman, the enquiry officer and the disciplinary authority were justified in holding the charges leveled against the workman to be proved. In domestic enquiry, the law is well settled that initiation of criminal proceedings by itself cannot establish culpability, the Apex Court in Ajith Kumar Nag

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Vs. General Manager (PJ), Indian Oil Corporation¹ has

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observed that, two proceedings, criminal and departmental are entirely different, whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with Service Rules. The degree of proof which is necessary to order conviction is different from degree of proof necessary to record the commission of delinquency. The Rule relating to appreciation of evidence in two proceedings is also not similar. In criminal Law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt, he cannot be convicted by a Court of law.” On the other hand, in a Departmental enquiry, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability” .

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The Tribunal, by considering the entire material placed before it and the enquiry report as well as the order

¶82

1 (2005) 7 SCC 764

¶83

15 - NC: 2024:KHC:35821 WP No. 9103 of 2021

¶84

of the disciplinary authority, has arrived at a conclusion that

¶85

the disciplinary authority has rightly passed the impugned order, and there is no perversity and illegality. For the foregoing reasons, the point framed for consideration is answered against the petitioner and accordingly, this Court pass the following:

¶86

ORDER

¶87

(i) Writ petition is dismissed.

¶88

(ii) The impugned order passed by the Industrial Tribunal stands confirmed.

¶89

Sd/(K.S. HEMALEKHA) JUDGE

¶90

¶91

List No.: 1 Sl No.: 51

R Shivaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

R Shivaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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