AI Structured Summary
Not yet generated for this judgment
Judgment
K.L. Manjunath, J.—The legality and correctness of the order passed by a learned Single Judge in WP No. 15126 of 2006 dated 16-7-2012 is called in question in this appeal.
Heard the learned counsel for the appellant and the learned counsel for the respondents.
Brief facts leading to this appeal are that: The appellant was appointed as a driver in the respondent-corporation. A charge memo was served upon him by the respondent-corporation on 31-8-1998, stating that on 7-8-1998, in utter violation of the provisions of Sections 4 to 7 of Karnataka Essential Services Maintenance Act, 1994, he was responsible for cancellation of 23 routes at Gundlupet depot of the corporation, which resulted in loss of revenue to the tune of Rs. 32,670/-, besides causing inconvenience to the travelling public. An inquiry was held against the appellant and eight other persons. A report was submitted on 30-7-1999, holding that the charges levelled against the appellant and others were not proved.
The report of the inquiring officer was not accepted by the management. A notice was issued to the appellant and others proposing penalty on them. The said show cause notice was challenged by one John D''souza, who was also facing similar inquiry along with the appellant herein, in WP No. 36792 of 1999 and WA No. 834 of 2000. This court quashed the show cause notice and directed the respondent-corporation to issue a fresh show cause notice, holding that the respondent-corporation was required to give reasons for differing from the report of the inquiring officer. Accordingly, a fresh show cause notice was given to the appellant herein and others, and the same was replied by them. On 7-2-2002, the appellant was dismissed from service.
On 22-5-2002, the appellant requested the managing director of the respondent-corporation to review the order of dismissal, stating that other employees who were also facing the similar charges have been exonerated. Based on the request of the appellant, vide order dated 28-6-2003, the reviewing authority of the respondent-corporation suo motu reviewed the order of dismissal from service passed against the appellant and set aside the dismissal order and modified the order of punishment, ordering reinstatement of the appellant with continuity of service, by reducing the punishment of withholding of one increment for a period of one year.
In the meanwhile, the appellant raised a dispute before the labour court in IID No. 177 of 2002. The respondent-corporation brought to the notice of the labour court about the order passed by the reviewing authority and requested the labour to dismiss the dispute, as the punishment of dismissal from service imposed on the appellant by the management has been set aside by the reviewing authority. In the interregnum, the respondent-corporation called upon the appellant to report for duty and sent reminders twice to the appellant. Later on, on the instructions of the labour court, the appellant reported for duty, but he failed to produce the documents sought for by the corporation. Still, the appellant continued the dispute raised by him before the labour court without attending to the duty.
The labour court allowed the dispute and an award was passed, setting aside the order passed by the reviewing authority on 28-6-2003 and also set aside the order of dismissal and directed the respondent-corporation to reinstate the appellant with full back-wages and all consequential benefits including continuity of service.
The award of the labour court dated 12-8-2006 was questioned before the learned Single Judge in WP No. 15126 of 2006. The learned Single Judge, having heard the learned counsel for the parties, came to the conclusion that when once an order was passed by the reviewing authority on the application filed by the appellant, the appellant could not have pursued his dispute before the labour court. The learned Single Judge also came to the conclusion that the order passed by the reviewing authority does not amount to altering the service conditions of the appellant and also came to the conclusion that the appellant did not disclose in the dispute filed before the labour court about the pendency of the application filed by him before the reviewing authority. The learned Single Judge also came to the conclusion that the order/award of the labour court as perverse and accordingly set aside the award passed by the labour court and dismissed the dispute raised by the appellant. Aggrieved by the order passed by the learned Single Judge in the writ petition, the appellant has filed the present appeal.
Sri K Govindaraj, learned counsel for the appellant, has raised the following grounds in support of the appeal: There is no provision for reviewing the order of dismissal by the reviewing authority. Any order passed by the reviewing authority is not binding on the appellant and therefore he contends that the labour court was justified in holding that the order passed by the reviewing authority is void ab initio and it is only a make-believe story that there was an order of reinstatement of the appellant. He further submits that the labour court has rightly appreciated the evidence let in by the parties to show that the order of dismissal passed by the respondent-corporation is bad in law, since no reasons were assigned by the disciplinary authority to differ from the findings of the inquiring officer and such findings of the disciplinary authority are perverse and therefore requests the court to allow the appeal and set aside the order passed by the learned Single Judge.
Per contra, Ms H R Renuka, learned counsel for the respondents, submits that the learned Single Judge is justified in allowing the writ petition, because the labour court has misdirected itself in not considering the true facts of the case. According to her, when the appellant was dismissed from service, he made an application/representation dated 22-5-2002 vide Annexure-C to the writ petition, requesting the vice-chairman and managing director of KSRTC to review the order of dismissal and to do complete justice to him, by taking a suo motu review as contemplated under Regulation 35 of the KSRTC Employees (CandD) Regulations, 1971. She further submits that the reviewing authority considered the representation of the appellant and reviewed the order of punishment and reduced the punishment from dismissal from service to that of withholding of increment for a period of one year and ordered for the reinstatement of the appellant into service with continuity of service. She, therefore, submits that there is no error in the order passed by the learned Single Judge and requests the court to dismiss the appeal.
The appellant is not disputing the request made by him vide Annexure-C dated 22-5-2002 to review the order of dismissal. Based on the request made by the appellant, if the reviewing authority, in exercise of suo motu power, reviewed and modified the order of dismissal, modified the punishment into one of reinstatement of the appellant by withholding one increment for a period of one year, the appellant cannot find fault with the order passed by the reviewing authority. Before the order could be passed by the reviewing authority, the appellant had raised the dispute before the labour court. In the dispute, for the reasons best known to him, the appellant has not disclosed the filing of a representation for review the order of punishment. Later, pursuant to the order of the reviewing authority, the appellant was called upon by the respondent-corporation on 23-7-2003 to report for duties, subject to production of valid driving licence, medical certificate to show his physical fitness, three passport size photographs and also remit the gratuity amount of Rs. 55,146/- with 14% p.a. interest thereon, which was received by the appellant from the respondent-corporation after his dismissal from service. Though the appellant received the call letter dated 23-7-2003 vide Annexure-H to the writ petition, he did not report for duties. Again, vide Annexure-J dated 12-8-2003, one more call letter was issued calling upon the appellant to report for duty within three days from the date of receipt of the call letter.
On receipt of the second call letter dated 12-8-2003, the appellant addressed a letter dated 25-8-2003 to the divisional commissioner, KSRTC, Mysuru (R) division, Mysuru, stating that he would produce the documents within a few days. However, in regard to refund of the gratuity amount, he requested the authority that he was unable to remit the amount with interest in lumpsum and prayed for deduction of said amount in 60 instalments from his salary payable in future. He also requested the divisional commissioner to post him to a nearby depot by canceling the order of transfer to Yadgir depot.
From the above facts, it is clear that the order of dismissal passed by the disciplinary authority was modified by the reviewing authority on the request of the appellant herein. If really the appellant was not interested to pursue the review application, he could have brought the same to the notice of the reviewing authority requesting him not to consider the application for reviewing the order of dismissal. Even if the authority had suo motu considered the review application filed by the appellant erroneously, immediately after the receipt of the order passed by the reviewing authority, it was open for the appellant to state that the order of the reviewing authority is not binding on him and that he would not honour the order, and that he would like to continue the dispute raised by him before the labour court, challenging the order of dismissal. Without doing so, in one breath he reports for duty in a halfhearted manner without producing the relevant documents sought for by the respondent-corporation and on the other, requested the corporation to deduct the gratuity amount out of his future salaries in 60 instalments, but still prosecuted the dispute before the labour court! The labour court, without appreciating the conduct of the appellant, has erroneously come to the conclusion that as if the order of review was only a make-believe story and to harass the appellant herein. According to us, the finding of the labour court is perverse and no court can appreciate the way in which the matter has been dealt with by the labour court.
There was no difficulty for the appellant to mention that he had requested the reviewing authority to review the order of dismissal while filing the claim statement before the labour court. At least, after the order was brought to the notice of the labour court by the respondent-corporation, the appellant could have straightaway requested the labour court to consider the dispute ignoring the order passed by the reviewing authority. On the contrary, pursuant to the direction of the labour court, the appellant went before the respondent-corporation for reporting for duty and having agreed to report for duties, without discharging his duties as driver, he continued to prosecute the dispute before the labour court.
In this background, if the learned Single Judge has taken the view that the conduct of the appellant does not inspire the confidence of any court to give relief to him and that the non-mentioning of the review petition filed by the appellant would be a good ground to set aside the order of the labour court, this court cannot find fault with the order of the learned Single Judge. Viewed from any angle, the conduct of the appellant discloses that he was not willing to discharge his duties as driver, but he was more interested in prosecuting the dispute before the labour court, without attending to the duties pursuant to the order of reinstatement passed by the reviewing authority.
We have to appreciate the conduct of the respondent-corporation, since corporation made a submission that corporation is willing to re-instate the appellant with continuity of service without back-wages. But the appellant adamantly stated that he is not willing to accept the proposal of the respondent. He submitted that respondent has to pay full back wages from the day one of his dismissal. We are unable to concede to the request of the appellant considering his conduct and that when he is not discharging his duties in spite of order of re-instatement, appellant is not entitled for back wages. In all fairness, it was for the appellant to accept the offer made by the respondent.
In the circumstances, we do not see any reasons to interfere with the order of the learned Single Judge. Accordingly, the appeal is dismissed with cost of Rs. 10,000/-. The appellant shall deposit the cost in the registry within four weeks from today.