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Friday, January 16, 2015

CIVIL APPEAL NO. 412 OF 2015 (Arising out of SLP (Civil) No.5236/2014) K.V.S. RAM .. Appellant Versus BANGALORE METROPOLITAN ..Respondent TRANSPORT CORPN.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURIDISCTION

                        CIVIL APPEAL NO. 412 OF 2015
                  (Arising out of SLP (Civil) No.5236/2014)


K.V.S. RAM                                              .. Appellant

                                   Versus

BANGALORE METROPOLITAN                           ..Respondent
TRANSPORT CORPN.

                               J U D G M E N T

R. BANUMATHI, J.

Leave granted.
2.          This appeal by special leave arises out of  the  judgment  dated
3.9.2012 passed by the High Court of Karnataka,  in and by which,  the  High
Court  dismissed  the  appeal  filed  by  the   appellant-workman   thereby,
confirming the  termination of the appellant.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
under:-  The  appellant  was  appointed  on  the  post  of   Driver  in  the
Bangalore Metropolitan Transport Corporation on 3.9.1985 and was working  on
the same post since then.  The appellant was served with article  of  charge
dated 3.9.1990 alleging that he  had  secured  appointment  by  producing  a
false transfer certificate.  An enquiry was initiated on 15.7.1992  and  the
appellant submitted his explanation to the aforesaid charges.   The  Enquiry
Officer submitted his report on 13.3.2002 holding the appellant  guilty  for
his misconduct.  After affording opportunity to the appellant to show  cause
against the proposed  punishment,  the  disciplinary  authority  passed  the
order imposing  punishment  of  dismissal  from  service  vide  order  dated
1.10.2004.
4.          Aggrieved by the order of dismissal,  the  appellant  raised  an
industrial dispute bearing I.D.No.39/2005 before the III  Additional  Labour
Court, Bangalore.  The Labour Court vide award dated 14.2.2007 directed  the
management of the corporation to reinstate the  appellant  in  his  original
post with continuity of service but without  backwages.   The  Labour  Court
modified the punishment directing  withholding  of  four  annual  increments
with cumulative  effect.   In  the  Labour  Court,  appellant  has  produced
notarized copies of orders passed by the respondent-Corporation  in  respect
of other workmen, who have committed similar  misconduct  but  were  awarded
lesser punishments.  Referring to Exs. W.5 to W.11 which are  the  notarized
copies of the orders passed in respect of other workmen who  have  committed
similar misconduct, Labour Court held that those workmen were reinstated  in
service with minor punishment  of  withholding  of  few  annual  increments,
whereas the  appellant  was  imposed  grave  punishment  of  dismissal  from
service and thus was discriminated.  Referring to another  judgment  of  the
High Court in W.P.No.17316/2005 (L/K) dated 8.8.2005, Labour Court  observed
that when similarly situated workmen were imposed lesser punishment and  the
appellant cannot be discriminated by imposing punishment of  dismissal  from
service and the Labour Court in exercise of  its  discretion  under  Section
11A  set  aside  the  punishment  imposed  on  the  appellant  and  directed
reinstatement of the appellant without backwages.
5.          Being aggrieved, respondent-corporation filed  a  writ  petition
before the High Court.  Vide order dated 31.1.2008,   learned  Single  Judge
of the High Court allowed the writ petition holding that the  punishment  of
dismissal from service was proportionate to the  proved  misconduct  against
the appellant.  Aggrieved  by  the  same,  the  appellant-workman  preferred
appeal before the Division Bench challenging the  legality  and  correctness
of the said order.  The Division Bench dismissed the  appeal  filed  by  the
appellant on the ground that the charges levelled against the appellant  are
serious in nature and that the punishment of dismissal from service  imposed
by the disciplinary authority was just  and  proper.  In  this  appeal,  the
appellant assails the correctness of the above judgment.
6.          Learned counsel for the appellant contended that the High  Court
erroneously held that the long delay of twelve years in holding the  enquiry
is not fatal to the case, although it is clearly evident that no  reasonable
explanation is forthcoming for the  inordinate  delay  of  twelve  years  in
concluding the disciplinary proceedings.    It was  further  submitted  that
in the similar cases of other workmen who produced bogus  certificate,  they
were  reinstated  in  the  service  withholding  of  few   increments   with
cumulative effect and while so, the appellant alone cannot be  discriminated
by imposing harsh punishment of dismissal from service.
7.          Per  contra,  learned  counsel  for  the  respondent-Corporation
contended that the finding of guilt was based on  appreciation  of  evidence
on record and having regard to the gravity of the charges, the Labour  Court
was not  justified  in  interfering  with  the  punishment  imposed  by  the
disciplinary authority and the learned Single Judge as well as the  Division
Bench of the High Court rightly set aside the award  passed  by  the  Court.

8.          We have carefully considered the rival contentions  and  perused
the impugned judgment and other materials on record.
9.          The appellant joined the services  of  the  corporation  in  the
year 1985.  In the year 1990, charges  were  framed  against  the  appellant
alleging that he had secured appointment by producing  a  false  certificate
and enquiry  was  initiated  in  the  year  1992  and  the  Enquiry  Officer
submitted his report only in  the  year  2002,  nearly  twelve  years  after
framing of charges.  Even though the Enquiry Officer  submitted  his  report
on 13.3.2002, order of dismissal from service was passed only on  1.10.2004.
 Enquiry report was thus submitted after a lapse of twelve years  and  there
was a delay of twelve years in conducting and completing  the  enquiry.   As
pointed out by the Labour Court, there  was  no  plausible  explanation  for
such inordinate delay in completing the enquiry.   The  appellant  continued
in service from 1990 to 2004.  Having allowed the appellant-workman to  work
for fourteen years, by the time punishment of  dismissal  from  service  was
imposed on the appellant, the appellant had reached the age  of  forty  five
years.  As observed by the Labour Court, the appellant having crossed  forty
five years, he could not have sought for alternative  employment.   Further,
as seen from Exs. W.5 to W.11, similarly placed workmen were ordered  to  be
reinstated with lesser punishment of stoppage of few increments.  While  so,
there is no reason as to  why  for  the  similar  misconduct  the  appellant
should be imposed harsh punishment of dismissal from service.
10.         It is settled proposition of  law  that  while  considering  the
management's decision to dismiss or terminate the  services  of  a  workman,
the Labour Court can interfere with the  decision  of  the  management  only
when it is satisfied that  the  punishment  imposed  by  the  management  is
highly disproportionate to the degree of guilt  of  the  workman  concerned.
Considering the  delay  in  completing  the  enquiry  and  the  age  of  the
appellant and the fact that similarly situated workmen were reinstated  with
lesser punishment, the Labour Court ordered reinstatement,  in  exercise  of
its discretion under Section 11A of the Industrial Disputes Act.
11.         In the Writ Petition, while  setting  aside  the  award  of  the
Labour Court, learned Single Judge placed  reliance  upon  the  judgment  of
this Court passed in the case of Punjab Water Supply Sewerage Board  &  Anr.
vs.  Ramsajivan & Anr., reported in 2007 (2) SCC (L&S) 668 =  (2007)  9  SCC
86 and also another judgment of the High Court and observed  that  a  person
who practices fraud for securing employment cannot perpetuate on the  ground
of delay  and  the  learned  Single  Judge  faulted  the  Labour  Court  for
exercising discretion under Section 11A of the Industrial Disputes  Act  and
interfering  with  the  punishment  of  dismissal  from  service.   In   our
considered view, in exercise of its power of superintendence  under  Article
227 of the Constitution of India, the High  Court  can  interfere  with  the
order of the Tribunal, only, when there has been a patent perversity in  the
orders of tribunal and courts subordinate to it  or  where  there  has  been
gross and manifest failure of justice or the  basic  principles  of  natural
justice have  been  flouted.   In  our  view,  when  the  Labour  Court  has
exercised its discretion keeping in view the  facts  of  the  case  and  the
cases of similarly situated workmen,  the  High  Court  ought  not  to  have
interfered with the exercise of discretion by the Labour Court.
12.         In Syed Yakoob vs. K.S. Radhakrishnan, AIR  1964  SC  477,   the
Constitution Bench of this Court considered the scope of  the  High  Court's
jurisdiction to issue a writ of certiorari in cases involving  challenge  to
the  orders  passed  by  the  authorities  entrusted   with   quasi-judicial
functions under the Motor Vehicles Act, 1939.  Speaking for the majority  of
the Constitution Bench, Gajendragadkar, J. observed as under: (AIR pp.  479-
80, para 7)
"7.   ...A writ of  certiorari  can  be  issued  for  correcting  errors  of
jurisdiction committed by inferior courts  or  tribunals;  these  are  cases
where  orders  are  passed  by  inferior   courts   or   tribunals   without
jurisdiction, or is in excess of it, or as a result of failure  to  exercise
jurisdiction.   A  writ  can  similarly  be  issued  where  in  exercise  of
jurisdiction conferred on it,  the  court  or  tribunal  acts  illegally  or
improperly, as for  instance,  it  decides  a  question  without  giving  an
opportunity to be heard to the party affected by the  order,  or  where  the
procedure adopted in dealing with the dispute is opposed  to  principles  of
natural justice.  There is, however,  no  doubt  that  the  jurisdiction  to
issue a writ of certiorari is  a  supervisory  jurisdiction  and  the  court
exercising  it  is  not  entitled  to  act  as  an  appellate  court.   This
limitation necessarily means that findings of fact reached by  the  inferior
court or tribunal as a result of the  appreciation  of  evidence  cannot  be
reopened or questioned in writ  proceedings.   An  error  of  law  which  is
apparent on the face of the record can be corrected by a writ,  but  not  an
error of fact, however, grave it may appear to be.  In regard to  a  finding
of fact recorded by the Tribunal, a writ of certiorari can be issued  if  it
is shown that in recording the said finding, the  Tribunal  had  erroneously
refused to admit  admissible  and  material  evidence,  or  had  erroneously
admitted inadmissible evidence which has influenced  the  impugned  finding.
Similarly, if a finding of fact is based on  no  evidence,   that  would  be
regarded as an error of law which can be corrected by a writ of  certiorari.
 In dealing with this category of cases, however, we  must  always  bear  in
mind that a finding of fact recorded by the tribunal  cannot  be  challenged
in proceedings for a writ of certiorari on the ground that the relevant  and
material  evidence  adduced  before  the  Tribunal   was   insufficient   or
inadequate to sustain the impugned finding.  The adequacy or sufficiency  of
evidence led on a point and the inference of fact to be drawn from the  said
finding are within the exclusive jurisdiction of the Tribunal, and the  said
points cannot be agitated before a writ court.  It is  within  these  limits
that the jurisdiction conferred on the High  Courts  under  Article  226  to
issue a writ of certiorari can be legitimately exercised."
               (Emphasis supplied)
13.         In the case of Iswarlal Mohanlal  Thakkar  vs.  Paschim  Gujarat
Vij Company Ltd. & Anr., (2004) 6 SCC 434,  it was held as under:-
"15. We find the judgment and award of the labour court  well  reasoned  and
based on facts and evidence on record. The  High  Court  has  erred  in  its
exercise of power under Article 227 of the Constitution of  India  to  annul
the findings of the labour court in its award as  it  is  well  settled  law
that the [pic]High Court cannot exercise its power under Article 227 of  the
Constitution as an appellate court or reappreciate evidence and  record  its
findings on the contentious points. Only if there is a serious error of  law
or the findings recorded suffer from error apparent on record, can the  High
Court quash the order of a lower court. The  Labour  Court  in  the  present
case has satisfactorily exercised its  original  jurisdiction  and  properly
appreciated the facts  and  legal  evidence  on  record  and  given  a  well
reasoned order  and  answered  the  points  of  dispute  in  favour  of  the
appellant. The High Court had no reason to interfere with the  same  as  the
award of the Labour Court was based on sound  and  cogent  reasoning,  which
has served the ends of justice.

16. It is relevant to mention that  in  Shalini  Shyam  Shetty  v.  Rajendra
Shankar Patil, (2010) 8 SCC 329 with regard to the limitations of  the  High
Court to exercise its jurisdiction under Article 227, it was  held  in  para
49 that: (SCC p. 348)
"49. (m) ... The power of interference under [Article 227] is to be kept  to
the minimum to ensure that the wheel of justice does not come to a halt  and
the fountain of justice remains pure and unpolluted  in  order  to  maintain
public  confidence  in  the  functioning  of  the   tribunals   and   courts
subordinate to the High Court."
It was also held that: (SCC p. 347, para 49)
"49. (c) High Courts cannot, at the drop of a hat, in exercise of its  power
of superintendence under Article 227 of  the  Constitution,  interfere  with
the orders of tribunals or courts inferior to it. Nor can  it,  in  exercise
of this power, act as a court of appeal over the  orders  of  the  court  or
tribunal subordinate to it."

14.         Emphasizing that while exercising  jurisdiction  under  Articles
226 and/or 227 of the Constitution of India, Courts are to keep in view  the
goals set out in the Preamble and in  Part  IV  of  the  Constitution  while
construing social welfare legislations, in Harjinder Singh vs. Punjab  State
Warehousing Corporation,  (2010) 3 SCC 192, this Court has  held  as  under:

"21.  Before concluding, we consider it  necessary  to  observe  that  while
exercising jurisdiction under Articles 226 and/or 227  of  the  Constitution
in matters like the present one, the High Courts are duty-bound to  keep  in
mind  that  the  Industrial  Disputes  Act  and  other  similar  legislative
instruments are social welfare legislations and the same are required to  be
interpreted keeping in view the  goals  set  out  in  the  Preamble  of  the
Constitution and the provisions contained in Part IV thereof in general  and
Articles 38, 39(a) to (e), 43 and 43-A in  particular,  which  mandate  that
the State should secure a social order for the promotion of welfare  of  the
people, ensure equality between men and women and equitable distribution  of
material resources of the community to subserve the  common  good  and  also
ensure  that  the  workers  get  their  dues.  More  than  41   years   ago,
Gajendragadkar, J. opined that:
"10. ...The concept of social and economic justice is a  living  concept  of
revolutionary import; it gives sustenance to the rule  of  law  and  meaning
and significance to the ideal of welfare State.
(State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923 at page 928  para
10)"

15.         Once the Labour Court has exercised the  discretion  judicially,
the High Court can interfere with the award, only if it  is  satisfied  that
the award of the Labour Court is vitiated by any fundamental flaws.   We  do
not find that the award passed by the Labour Court  suffers  from  any  such
flaws.  While interfering with the award  of  the  Labour  Court,  the  High
Court did not keep in view the  parameters  laid  down  by  this  Court  for
exercise of jurisdiction by the High Court under Articles 226 and/or 227  of
the Constitution of India and the impugned judgment cannot be sustained.
16.         In the result, the appeal is allowed and the  impugned  judgment
passed by the High Court is set aside and the award  passed  by  the  Labour
Court is restored. In the facts and circumstances of the case,  we  make  no
order as to costs.

                                           ...............................J.
                                                           (V. Gopala Gowda)


                                           ...............................J.
                                                              (R. Banumathi)
New Delhi;
January 14, 2015


ITEM NO.1C-For Judgment     COURT NO.11               SECTION XV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  5236/2014

(Arising out of impugned final judgment and order dated 03/09/2012 in WA
No. 390/2008 passed by the High Court Of Karnataka At Bangalore)

K.V.S.RAM                                          Petitioner(s)

                                VERSUS

BANGALORE METROPOLITAN TRANSPORT CORP              Respondent(s)

Date : 14/01/2015 This petition was called on for pronouncement of JUDGMENT
today.


For Petitioner(s)
                     Mr. V. N. Raghupathy,Adv.

For Respondent(s)
                     Mr. S. N. Bhat,Adv.


            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda  and  Hon'ble  Mrs.
Justice R. Banumathi.
            Delay condoned.
            Leave granted.
            The appeal is allowed in terms of the signed order.


    (VINOD KR. JHA)                               (RENU DIWAN)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

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