East Karnataka Road Transport Corporation Vs. M.Nagangouda  Insc 22 (9
Dr.Ar. Lakshmanan & Altamas Kabir (Arising out of S.L.P.(C) No.24222/2005)
Altamas Kabir, J.
appeal is directed against the judgment and final order dated 1st July, 2005
passed by the High Court of Karnataka at Bangalore in Writ Appeal No.2446/2005
choosing not to interfere with the findings recorded in the award of the
Tribunal as also the order of the learned Single Judge that on account of the
forced idleness of the respondent-workman, he would be entitled to full back
wages on reinstatement.
proper appreciation of the order passed by the Tribunal and the High Court, it
is necessary to set out a few facts in brief.
respondent-workman was working as a Conductor of Kudligi Depot of the
appellant-corporation. On 5th October, 1980,
while the said respondent was on duty in vehicle No.MYF-2613 plying between Hadagali
to Medalagatta, the said bus came to be checked by the Central Line Checking
Squad, Bangalore at Medalgatta Stage No.3. The
allegation against the respondent is that he had failed to issue tickets of
0.90 paise denomination to four passengers despite collection of requisite fare
at the boarding point. On the basis of the report submitted by the Checking
Squad, disciplinary proceedings were initiated against the respondent and he
was served with Articles of Charges. The respondent filed his written statement
of defence denying the charges levelled against him. However, the disciplinary
authority was not satisfied with the defence taken by the respondent and
appointed the Assistant Traffic Manager as Enquiring Authority to conduct an
enquiry against the respondent.
was duly conducted on 21st
January, 1981 and on
the materials available, the Enquiring Authority held the respondent to be
guilty of misconduct. Accepting the reports submitted by the Enquiring
Authority, the Disciplinary Authority by its order dated 27th August, 1981 dismissed the respondent from
service with immediate effect under powers vested in it by Regulation 19 (3)
under Part-III of the KSRTC Servants (C & D) Regulations, 1971. The
respondent approached the Assistant Labour Commissioner for conciliation. As
the same failed, the matter was referred to the Labour Court by the Government of Karnataka vide Reference dated 22nd November, 1982. The Terms of Reference were as
follows:- "(i) Is the Management justified in dismissing M. Nagangouda,
Ex- Conductor, Kudligi Depot, Bellari Division from service with effect from
27.08.1981? (ii) If not to what other relief the said workman is
entitled?" The said reference, being Reference No.46/1992, came up before
the Labour Court which in its turn framed the
following issues for consideration:- (a) Whether the domestic enquiry is fair
and proper ? (b) Whether the order of termination passed by the respondent is
legal and valid ? (c) What order ?" On 20th October, 1994, the Labour Court heard issue No.1 as a preliminary issue and held that the
domestic enquiry was not fair and proper.
On 3rd January, 1995, while the proceedings were pending
before the Labour Court, the respondent filed an interim
application which was allowed by the Labour Court and the appellant-corporation was directed to pay 50 % of
the salary last drawn by the respondent. In view of the aforesaid order, the
appellant was permitted to obtain work from the respondent on the strength of a
joint memorandum filed by the parties. Subsequently, on 23rd Febraury, 1998,
the Labour Court allowed the respondent's claim
petition by ordering his reinstatement into service and also holding that he
was entitled to receive 50 % of the back wages. Aggrieved by the aforesaid
order, the respondent filed a Writ Petition No.26409/1998 before the High Court
of Karnataka which remitted the matter back to the Labour Court with a direction to pass
appropriate orders with regard to back wages, continuity of service and other
consequential benefits, after affording an opportunity to both the parties.
After remand, the Tribunal vide its Order dated 10th August, 2001, allowed the Reference and held that the respondent was
entitled to receive full back wages from the date of the order of dismissal
till the date of the award with continuity of service and all consequential
appellant-corporation challenged the award passed by the Tribunal by way of a
Writ Petition No.46673/2003 contending that the award of the Labour Court was
erroneous on the face of the record and the conclusions arrived at were
untenable. One of the grounds taken by the appellant was that the Labour Court having found that the respondent is
engaged in agricultural operations, should not have held that the same was not
an alternative employment.
Writ Petition filed by the appellant came to be listed for final hearing before
the learned Single Judge on 2nd February, 2005, and by his Order of even date
the Single Judge dismissed the Writ Petition holding that the management had
not been able to establish that the respondent was engaged in any gainful
employment during the period of dismissal. The learned Judge also came to a
finding that when the misconduct was not proved, there could be no
justification in denying grant of back wages and that the conclusion arrived at
by the Industrial Tribunal was neither perverse nor arbitrary.
aggrieved by the above, the appellant preferred an appeal. The Writ Appeal was
taken up for hearing by the Division Bench of the High Court on 1st July, 2005 and was dismissed, thus confirming
the orders passed by the learned Single Judge and the Industrial Tribunal.
indicated hereinbefore, this appeal is directed against the judgment and order
of the Division Bench.
very outset it was submitted on behalf of the appellant that the Corporation
had no grievance against the award as was made by the Labour Court on 23rd February, 1998 and that the Corporation was ready and willing to
reinstate the respondent and to pay 50 % of the salary last drawn by him. The
Corporation was, however, aggrieved by the subsequent award passed by the Labour
Court after remand whereby the Labour Court altered its earlier directions
after coming to a finding that the respondent was entitled to full back wages
and not 50 % as had been directed earlier.
sought to be urged that after coming to a finding on the basis of the evidence
of the respondent himself that the during the period of termination of his
services, he was engaged in agriculture and that he was receiving certain
amounts therefrom, it was not open to the Labour Court to observe that
"gainful employment" would not include such income from agriculture.
It was urged that income from any source, whether from employment in an
establishment or from self-employment, would have to be treated as income for
the purposes of deciding whether the respondent would be entitled to receive
full back wages. It was urged that both the Tribunal and the High Court erred
in taking a view to the contrary and the orders passed on the basis thereof
were liable to be set aside.
behalf of the respondent the stand taken before the Labour Court and the High
Court was reiterated and it was contended that engaging in agricultural work
would not amount to being gainfully employed and hence the orders passed by the
Tribunal as affirmed by the High Court for payment of full back wages to the
respondent, did not call for any interference.
have carefully considered the submissions made on behalf of the respective
parties in the backdrop of the facts of the case. Since the finding on the
issue as to whether the domestic enquiry had been fairly and properly held had
been decided in favour of the respondent and had not been challenged by the
appellant, the only issue which was remitted by the High Court to the Tribunal
was whether the respondent would be entitled to full back wages from the date
of his dismissal till the date of the award, with continuity of service and
said question, we are unable to accept the reasoning of the Labour Court that the income received by the
respondent from agricultural pursuits could not be equated with income from
gainful employment in any establishment.
view, "gainful employment" would also include self- employment
wherefrom income is generated. Income either from employment in an
establishment or from self- employment merely differentiates the sources from
which income is generated, the end use being the same. Since the respondent was
earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that
merely because the respondent was receiving agricultural income, he could not
be treated to be engaged in "gainful employment".
Single Judge of the High Court without looking into this aspect of the matter
merely observed that the management had not established that the workman was
engaged in any gainful employment during the period of dismissal and on such
finding, the learned Single Judge chose not to interfere with the award as
passed by the Tribunal after remand.
Division Bench which heard the Writ Appeal did not also consider the aforesaid
aspect of the matter and mechanically disposed of the appeal with the
observation that after going through the order of the learned Single Judge and
the award of the Tribunal, it found no ground to interfere with the findings
view of what we have stated hereinabove regarding the income received by the
respondent for the period of his dismissal from service till the date of the
award, we are of the view that the award passed by the Tribunal after remand
and affirmed by the High Court, both by the learned Single Judge and the
Division Bench is liable to be modified and the earlier award of the Labour
Court dated 23rd February, 1998 is liable to be restored.
accordingly, allow the appeal and restore the award passed by the Labour Court dated 23rd February, 1998 and direct the respondent to give effect to the same
expeditiously, if the same has not already been implemented.
event full back wages from the date of dismissal till the date of the award has
already been paid to the respondent, the appellant-Corporation will be entitled
to recover the same from the respondent.
will be no order as to costs.