THE KARNATAKA STATE ROAD TRANSPORT CORPORATION MANGALORE DIVISION, BEJAI v. P ASHOK SHENOY

ORDER This writ petition is by the Corporation against the award dated 24.02.2011 in I.D.A No.10/2008 on the file of the Labour Court, Dakshina Kannada, Mangalore.

2. The respondent – workman was a Driver in the petitioner –Corporation. He was dismissed from service by order dated 11.12.2007 passed by the Corporation, as against which, he raised a dispute under Section 10(4-A) of the Industrial Disputes Act, 1947.

3. The facts leading up to this case are: An enquiry was initiated against the respondent inter alia alleging that on 05.09.2006, he was deputed to Regional Transport Office to renew the fitness certificate of vehicle bearing No.MEF.9739. While returning from the said office, 3 he stopped the vehicle near Tejaswini Hospital, Mallikatte at about 16.15 hours. The officials of the petitioner – Corporation, on receiving information that the respondent was in the habit of removing diesel from the tank of the vehicle, were waiting near the said hospital and watching the movements of the respondent. The respondent got down from the vehicle and went out and came back after 15 minutes with a plastic Can and a pipe. He started removing diesel from the tank of the vehicle with the help of a pipe. MW.2, who saw the same, took five photos of the respondent removing diesel from the tank of the said vehicle. Thereafter, on the next day, the officials of the Corporation filed a complaint before the jurisdictional Police and also initiated enquiry. The Enquiry officer, after conducting the enquiry, submitted his report holding that the charges are proved against the respondent. the Disciplinary authority, based on the report, issued a second show cause notice. Unsatisfied 4 with the reply to the second show cause notice, the Disciplinary Authority passed an order of dismissal as against which, the respondent raised dispute before the Labour Court. The Labour Court held that, the enquiry is fair and proper. On perversity and victimization, the Labour Court found that the charge alleged against the respondent is not proved and held that, the order of dismissal is liable to be set aside and accordingly, it partly allowed the dispute by setting aside the order of dismissal and directing reinstatement of the respondent with continuity of service and 50% back wages. As against the same, the Corporation has filed this writ petition.

4. Learned counsel for the petitioner submits that, the Labour Court having held that the enquiry is fair and proper, was not justified in giving a finding contrary to the evidence led by the Corporation inter alia observing that 5 there was enmity between the respondent and MW.4. MW.4 is neither an eye witness to the incident nor he was present at the time when the photographs were taken. In turn, he had gone to bring back the said vehicle, which was seized by the officials of the Corporation. MW.2 has stated in his evidence that he saw the respondent removing diesel from the tank by means of a pipe and when the respondent saw MW.2, he ran away from the said place. Ex.M8 referred to by the Labour Court as log sheet is not the log sheet, which was seized from the respondent. It was a movement sheet in respect of the vehicle kept in the depot and wrongly interpreted as a log sheet. The Labour Court has given an erroneous finding. There is no evidence to show that there was any enmity between the respondent and MW.4. MW.4 is not an eye witness nor he has deposed against the respondent. As such, the Labour Court, only on the ground that there was enmity between the respondent and MW.4 and on the basis of Ex.M8 has set aside the order of dismissal, by observing that the original log sheet could not 6 have been produced by the Corporation before the Labour Court as the respondent had ran away from the spot, as such it is not explained as to how the said log sheet came in possession of the corporation. The findings of the Labour Court are contrary to the evidence led by the Corporation. The scope of consideration of the evidence by the Labour Court was limited to the perversity of the finding and victimization. When there is no perversity in the findings of the Enquiry Officer and when there is no victimization, the Labour Court was not justified in setting aside the order of the Disciplinary Authority.

5. On the other hand, the learned counsel appearing for the respondent submits that, though the incident according to the Corporation is alleged to have occurred on

05.09.2006, the complaint is filed on 06.09.2006. In the complaint, except suspecting the respondent, allegations that the officials of the Corporation seized the vehicle and took the photographs of the respondent removing diesel are 7 not alleged. He also submitted that, there was a quarrel between the respondent and MW.4 and MW.4 deliberately, has deposed against the respondent. He further submitted that, the Criminal Court has acquitted the respondent from the alleged charge of theft of diesel. The Enquiry Officer without considering the evidence of the respondent has given a finding. As such, the Labour Court held that the charge is not proved and set aside the order of punishment.

6. It is not in dispute that the respondent was working as a Driver. It is also not in dispute that as on

05.09.2006, he was entrusted with the vehicle bearing No.MYF.9739. It is also not in dispute that the said vehicle was seized by the officials of the Corporation near Tejaswini Hospital. It is submitted that the vehicle was abandoned by the respondent. The only explanation offered by the respondent is that he had gone to the Hospital. However, there is no reason to disbelieve the evidence of MW.2, who in his evidence has categorically stated that on getting the 8 information that the respondent is in the habit of removing the diesel from the vehicle, they went to the place and kept the watch on the movements of the vehicles. It is not in despite that the vehicle was found abandoned near Tejaswini Hospital.

7. As far as removal of diesel by the respondent from the tank of the vehicle is concerned, the movement sheet maintained at the depot shows that the decrease in the quantity of diesel in the vehicle entrusted to the respondent and did not tally with the number of kilometers. Though the learned counsel for the respondent submitted that, MW.4 was inimically disposed towards the respondent, MW.4 has only deposed that he had gone to the spot to bring back the vehicle along with one Nagesh, Driver. Except this, he had not deposed anything against the respondent. His evidence neither proves the charge nor disproves it. It is not the case of the respondent that MW.4 is highly influential and he had influenced MW.2. The respondent had abandoned the 9 vehicle and the evidence of MW.2 also shows that he had seen the respondent removing diesel from the vehicle by means of a pipe and plastic can and nothing has been elicited in the cross-examination of MW.2 to disbelieve his evidence. When there is concrete evidence and the Enquiry officer relying upon the same, has given a finding, there must be strong reasons for the Labour Court to disbelieve the evidence and to hold that the findings of the Enquiry Officer are perverse. Th Labour Court has misread Ex.M8. Ex.M8 is not a log sheet and it is not seized from the respondent. Ex.M8 is a portion of the register maintained as regard to the movements of the vehicle from the depot. It reveals the details as to at what time the vehicle was removed from the depot and at what time it was brought back. The respondent also admitted that he was not present when the vehicle was brought back. The vehicle was brought back long after it was seized. The very fact that the vehicle was not brought by the respondent gives rise to suspicion that he had ran away from the place. These circumstances have not been appreciated 10 by the Labour Court. The Labour Court has erroneously given a finding that the charge is not proved against the respondent. When the Labour Court has held that the enquiry is fair and proper, in the absence of any contrary evidence, I find that, the findings of the Labour Court are perverse, not based on the evidence and are liable to be set aside. Accordingly, the petition is allowed. The impugned award dated 24.02.2011 in I.D.A. No.10/2008 on the file of the Labour Court, Dakshina Kannada, Mangalore, is set aside. The order of punishment passed by the Disciplinary Authority dated 11.12.2007, dismissing the respondent – workman from service, stands confirmed. Sd/- JUDGE