The Management of KSRTC Davanagere Division vs Shri K.M. Dada

A.N. Venugopala Gowda, J. - On a reference being made at the instance of the respondent - workman, a dispute as to the punishment of reducing his pay by two incremental stages by the petitioner-Management was referred to the Industrial Tribunal, Hubi and was registered as I.D. No. 108/2008. The parties having filed the claim and the counter statements, four issues were raised. Issue No. 1 relating to the fairness of the domestic enquiry conducted, upon consideration of the evidence adduced by the parties was answered in the affirmative vide order dated 19-11-2011. Though further opportunity was granted to adduce evidence on merits of the case, no evidence was adduced. Upon hearing of the arguments with regard to issue No. 2, the misconduct alleged against the workman was held as established. Considering the case with regard to quantum of punishment imposed it has held that the same is on a higher side. As a consequence, the reference was allowed in part and the impugned punishment order passed by the Disciplinary Authority reducing the pay of the workman by two incremental stages with cumulative effect was set aside and by way of modification it was ordered that one increment of the workman for the year 1999 be withheld only for a period of one year without cumulative effect which shall not have the effect of postponing the future increments of the workman, vide Judgment and Award dated 10-5-2012, as at Annexure-F. Assailing the said Award, the Management filed this writ petition.

Sri B.L. Sanjeev, learned advocate for the petitioner, firstly contended that the dispute having been raised after the lapse of 6 years without offering any satisfactory explanation for the delay, ought to have been rejected in limine. In support of the said submission, learned counsel placed reliance on the law laid down in the following decisions:

Nedungadi Bank Ltd. v. K.P. Madhavan Kutty, Reported In, (2000) 2 SCC 455;

B.M.T.C v. Chikanna, ILR 2005 Kar 1409.

Dharappa v. Bijapur Co-Op. Milk Producers Society Union Ltd., Reported in 2007 AIR SCW 2882;

State of Karnataka & Another v. Ravikumar, Reported In (2009) 13 SCC 746.

Secondly, the Tribunal having held that the misconduct alleged against the workman as having been established, that too, after recording finding in the affirmative with regard to the fairness of the enquiry held, has committed illegality in interfering with the quantum of punishment by exercising the power under section 11A of the Industrial Disputes Act, 1947 (for short, ''the Act''). Learned counsel submitted that the Tribunal has erred in not noticing and following the law laid down by the Apex Court in the case of South Indian Cashew Factories Workers'' Union v. Kerala State Cashew Development Corpn. Ltd. and others, (2006) 5 SCC 201, wherein it has been held that section 11A of the Act is applicable only In case of dismissal or discharge of a workman and the present case being not a case of dismissal or discharge, the modification of the punishment is wholly arbitrary and illegal. Lastly the learned advocate submitted that the impugned Award being perverse and illegal is liable to be quashed.

Sri V.S. Naik, learned advocate for the respondent on the other hand made submissions in support of the Award passed vide Annexure-F and sought dismissal of the petition.

Perused the record and considered the rival contentions.

Point for consideration is, whether the impugned Award is arbitrary and perverse?

The Tribunal having taken into consideration the claim statement and the counter statement filed by the parties has raised he following points for determination:

Whether the domestic enquiry conducted by the second party (management) against the first party (-workman) by the respondent (management) is fair and proper?

Whether the Order bearing No. Ka Ra Sa: Da Vi : Shi Sha : 624 : 99 : 2948 : 01-02 dated 4-1-2002 (order bearing No. 624(99) : 2948 dated 14-1-2002 as stated in the order of reference bearing No. 673: 2008 dated 23-9-2008) reducing two increments of the workman with cumulative effect is legal and justified?

Whether the workman is not entitled to the relief in view of the delav in raising the dispute?

What order?

Issue No. 1 was treated as a preliminary issue. For the Management, one Ganeshappa has deposed as MW-1 through whom exhibits M1 to M32 were marked. The workman having not adduced any evidence with regard to the preliminary issue, upon consideration of the rival contentions and by an Order dated 19-11-2011 has answered the issue in the affirmative, holding that the domestic enquiry conducted by the Management against the petitioner is fair and proper.

Neither of the parties having adduced evidence on the merits of the case and while recording finding on issue Nos. 2 and 3, particularly with reference to Ex. M26, a submission letter of the petitioner, wherein he has admitted the guilt as was alleged against him, the Tribunal has held the misconduct alleged against the petitioner as established. Despite the said finding, the punishment imposed by the Management was interfered on the ground that: it is not the case of the Management that earlier to the present incident, the petitioner had involved in some other case of similar nature.

In the case of South Indian Cashew Factories Workers'' Union (supra), Apex Court with regard to the scope of Section 11A of the Act, has held that, if the enquiry is fair and proper, even in the absence of any allegation of victimization of unfair labour practise, the Labour Court has no power to interfere with the punishment imposed and that the said Section is applicable only in the case of dismissal or discharge of a workman. Having found that section 11A was not applicable, it was held that the Labour Court had no power to reappraise the evidence to find out whether the findings of the enquiry officer were correct or not or whether the punishment imposed was adequate or not.

In the Case of Divisional Controller, KSRTC Da-vanagere Division v. H.G. Basavegowda, ILR 2014 Kar 2315, it has been held that the misconduct alleged when established and accepted by the Labour Court on the premise that the material on record is sufficient to prove the charge against the workman, the punishment not being one of dismissal or termination from service, Labour Court had no jurisdiction to invoke section 11A of the Act to interfere with the order of punishment and reduce the punishment. The present case is akin to the said case.

In the circumstances, the impugned Award as at Annexure-F is arbitrary and illegal, as the Tribunal has failed to take into consideration the settled position of law with regard to scope of section 11A of the Act enunciated by the Apex Court in the case of South Indian Cashew Factories Workers'' Union (supra). The Tribunal has erred in interfering with the punishment imposed by the Management by exercise of the power under Section 11A of the Act, which is impermissible. There is wrong exercise of the power conferred under Section 11A of the Act, which is arbitrary.

In the result, the petition is allowed and the Award passed by the Industrial Tribunal, Hubli vide Annexure-F substituting the punishment is hereby quashed and as a consequence, the reference made by the Government to the Tribunal stands answered in the negative. However, there shall be no order as to costs.