Ramappa Lakshmappa Kolur Vs the Divisional Controller

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED AWARD DATED 04.02.2022 PASSED BY THE HONBLE LEARNED PRESIDING OFFICER,LABOUR COURT,CHIKKAMAGALUR IN IDA NO.05/2020 IN SO FAR AS IT RELATES TO DENIAL OF DENIAL OF CONSEQUENTIAL BENEGITS IS CONCERNED VIDE ANNEXUREA TO THE WRIT PETITION.

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IN WP NO. 12968/2022:

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BETWEEN:

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THE DIVISIONAL CONTROLLER, KARNATAKA STATE ROAD TRANSPORT CORPORATION (KSRTC), CHIKKAMAGALUR DIVISION, CHIKKAMAGALURU, HEREIN REPRESENTED BY THE CHIEF LAW OFFICER K.S.R.T.C, CENTRAL OFFICES, K.H. ROAD, SHANTHI NAGAR BENGALURU 560 027

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...PETITIONER

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(BY SRI SANJEEV B L, ADVOCATE)

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AND:

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SRI. RAMAPPA LAKSHMAPPA KOLUR, S/O LAKSHMAPPA, AGED ABOUT 43 YEARS, BEERALINGESHWARA LAYOUT, GAVANAHALLI, RAMPURA POST, CHIKKAMAGALURU - 577101.

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...RESPONDENT

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(BY SRI SHEKAR L, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICILES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE PROCEEDINGS OF LABOUR COURT, CHIKMAGALUR PERTAINING TO I.D.A.NO.5/2020 WHICH HAS CULMINATED IN ITS AWARD DTD 04.02.2022, PRODUCED AT ANNEXURE-E AND ETC.

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THESE PETITIONS, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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These two petitions arise from a common award in I.D.A.No.5/2020 on the file of Labour Court,

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Chikkamagaluru. In terms of the impugned award dated 04.02.2022, the application filed by the employee is allowed. The operative portion would read as under:

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"The Application filed by the 1^st party under section 10(4-A) of the Industrial Disputes Act is allowed.

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The order of dismissal dated 30.09.2020 passed by the second party against the first party is set aside. The second party is hereby directed to reinstate the first party within two months from the date of publication of the Award, with continuity of service, with full back wages from the date of dismissal till the date of reinstatement."

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The employee/petitioner is before this Court in W.P.No.403/2023 challenging the award which has not specifically granted the consequential benefits. The

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employer-KSRTC is before this Court in W.P.No.12968/2022 challenging the award for reinstatement with full backwages.

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Certain facts are admitted. The employee on 24.02.2019 was driving a vehicle belonging to KSRTC and accident took place resulting in the death of the rider of two wheeler. It is stated that CCTV footage was also collected which captured the said accident and charge sheet is filed against the driver of the bus as well as the rider of the bike who died in the accident. It is further stated that the petitioner is acquitted in a criminal case filed under Section 304-A of Indian Penal code.

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The employer initiated disciplinary action against the petitioner and the petitioner denied the charges. After conducting the enquiry, the enquiry officer found that the petitioner is guilty and the report was submitted to the Disciplinary Authority. The Disciplinary Authority accepting the report has dismissed the employee from services.

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Aggrieved by the aforementioned order

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dismissing the petitioner from service, petitioner raised the dispute referred to above.

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The Labour Court found that the enquiry was not proper and the parties were permitted to lead evidence in support of their respective claim. Accordingly, the evidence was led before the Labour Court. On appreciation of the evidence, the Labour Court has concluded that the order of dismissal is erroneous and passed an order for reinstatement of the employee with backwages. However, consequential benefit is not granted. Accordingly, the aforementioned two petitions have been filed.

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Learned counsel for the petitioner/employee

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would submit that the order of dismissal is wholly erroneous. He would contend that there was no evidence before the enquiry officer to hold that the petitioner was negligent in driving the vehicle and on account of his alleged negligence, the accident took place. It is his submission that the charge sheet is filed against the rider of the bike which itself would indicate that the rider of the bike was negligent in riding the

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bike which resulted in accident. He would also contend that no eye-witness is examined and in absence of any evidence pointing to the alleged negligence on the part of the petitioner, the Disciplinary Authority could not have imposed the penalty of dismissal of service and he would contend that the Labour Court after having held that there is no material to hold that the petitioner was negligent could not have denied the consequential benefits, on reinstatement. Thus, he would contend that the petition has to be allowed.

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As far as the petition filed by the Corporation is concerned, the learned counsel appearing for the employee would contend that without there being any material to point to the alleged negligence on the part of the petitioner, the petition filed by the Corporation is not maintainable. Thus, he would pray for dismissal of the petition filed by the Corporation.

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Learned counsel appearing for the Corporation would contend that the charge sheet is filed against the driver of the bus after collecting the materials and the contents of the charge sheet would indicate that the driver

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was negligent and on account of his negligence, the accident is caused resulting in death of the rider of the two wheeler. It is also his contention that the petitioner was dismissed in the year 2020 and he was ordered to be reinstated in the year 2022 and he did not work for two years, as such the Labour Court could not have passed an order for payment of backwages. He would also contend that the principle "No work no pay" would squarely apply to this case and would urge that the award for payment of backwages has to be set aside. He would also contend that the Labour Court is justified in not providing the consequential benefits as the petitioner did not work for two years.

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Learned counsel appearing for the Corporation would also urge that the claim petition is filed by the dependents of the deceased as well as the persons injured in the said accident. In one case, compensation of Rs.1,42,830/- along with 6% interest per annum is awarded and in another case, compensation of Rs.5 lakhs is awarded along with 6% interest per annum. Thus, he would contend

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that on account of negligent act of the petitioner/employee, the Corporation has suffered financial loss.

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This Court has considered the contentions raised

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at the bar and perused the records.

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The following points arise for consideration.

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(a) Whether the Labour Court is justified in setting aside the penalty of dismissal imposed by Disciplinary Authority?

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(b) Whether the Labour Court is justified in not granting consequential benefit to the employee who is ordered to be reinstated?

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(c) Whether the Labour Court is justified in granting backwages to the employee who did not work for two years?

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As far as the order of dismissal is concerned, the

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employer has to establish that accident took place on account of rash and negligent act of the driver. It is forthcoming from the records that no eye-witness is examined to substantiate the contention that the accident took place on account of rash and negligent act of the driver.

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Though the learned counsel appearing for the Corporation would contend that the Depo Manager who has inspected the vehicle after the accident is examined to prove the act of negligence, this Court is of the view that the evidence of Depo Manager who is not an eye-witness to the accident is hearsay evidence in so far as alleged act of negligence is concerned. The Depo Manager can be examined only for the purpose of the spot inspection which he has carried out after the accident. The Corporation could have summoned any of the witnesses named in the charge sheet or any other person who has seen the accident to establish the contention that the driver was negligent. However, no such attempt is made by the Corporation. In the absence of any evidence to show that the driver was negligent while driving the vehicle, the enquiry officer could not have given a finding that the driver was negligent. The Disciplinary Authority could not have accepted the report without there being any evidence of the witness who has seen the accident testifying the alleged negligence on the part of the driver.

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The Labour Court has considered the evidence on record which has concluded that the alleged negligence on the part of the driver is not established. And it is also relevant to note that the charge sheet is also filed against the rider of the bike. This Court does not find any error in the order passed by the Labour Court which has set aside the order of dismissal.

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Under these circumstances, the finding of the Labour Court that the negligence on the part of the driver is not established cannot be said to be illegal or perverse finding so as to interfere in exercise of jurisdiction under Article 227 of Constitution of India.

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Learned counsel appearing for the employee would contend that the Labour Court after having reinstated, the driver has not passed any order granting consequential benefits. It is his contention that no reasons are assigned for not granting the consequential benefits pursuant to reinstatement. Thus, he would contend that the consequential benefit has to be awarded in favour of the driver who is ordered to be reinstated.

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Learned counsel appearing for the Corporation would contend that since the petitioner did not work for two years, he is not entitled to consequential benefit.

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It is noticed from the order passed by the Labour Court that no reasons are assigned as to why consequential benefit is not specifically ordered in favour of the driver. Merely because the driver did not work for two years after the dismissal till the reinstatement is not a ground to deny the consequential benefit when there is an order for reinstatement.

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The driver is awarded full backwages. Learned counsel appearing for the respondent has vehemently contended that since the driver did not work for two years, he is not entitled for the backwages for the period during which he was not working as the driver of the Corporation. He would urge that 'No work No pay' principle would apply in this case and to that extent backwages has to be denied.

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Learned counsel appearing for the employee would contend that it is because of illegal termination, the

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employee was not allowed to work and he cannot be denied backwages on account of illegal act on the part of the employee.

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It is indeed true that the driver was not allowed to work from the year 2020 till the date of reinstatement on account of the termination. Termination is held to be illegal by the Labour Court. This Court has also concluded that the termination is illegal. However, what is to be noticed is that it is not a malafide enquiry conducted by the Corporation. There was a cause of action for the Corporation to conduct the enquiry as the charge sheet is filed against the driver alleging negligence. However, the alleged act of negligence is not established for want of the evidence of eye-witness. The accident is not disputed.

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Under these circumstances, the Labour Court has set-aside the order of termination. In this background, this Court is of the view that the award directing full backwages is not sustainable.

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Considering the facts and circumstances, this

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Court is of the view that the petitioner/employee is only entitled to 50% of the backwages. As already noticed, the denial of consequential benefit is unjustified.

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