ORDER :

In the instant petition, the petitioner has prayed for the following reliefs.

(i) A writ in the nature of certiorari or any other writ order or direction to quash the award dated 13.12.2013 in Ref No.163/2008 passed by the Industrial Tribunal, Mysore (Annexure-D).

(ii) Such other writ order or direction that this Hon’ble Court deems just and expedient in the circumstances of the case.

2. The respondent, while working as a Conductor in the Arasikere Unit, was on duty with vehicle bearing No.F-944, which was plying through Hassan to Mylara route on 22.08.2004, the Inspecting Squad inspected the vehicle at about 19-15 hours at Duggavathi and found certain discrepancies in not issuing tickets and collected fare of Rs.6/-each from 10 passengers towards traveling from Harihara to Duggavathi, he had also failed to issue tickets to two passengers who were traveling from Harihara to Telegi and he had also failed to collect chargeable fare of Rs.8/-from those passengers and that he had not closed the entry of 40th stage.

3. On the alleged aforesaid allegations, the charge memo was issued on 16.09.2004 and he was punished in a domestic enquiry while withholding one increment without cumulative effect, which was the subject matter of Reference No.163/2008-A before the Industrial Tribunal at Mysore. The Reference was allowed and the order of punishment dated 31.03.2006 is set-aside and it was further held that the respondent is entitled to all the withheld benefits pursuant to the punishment order.

4. Feeling aggrieved by the award passed by the Industrial Tribunal, Mysore, the petitioner – Corporation has presented this petition.

5. Learned counsel for the petitioner vehemently contended that it is an admitted fact that the respondent had not issued tickets as is evident from the fact that the Inspecting Squad had imposed penalty fare from the ticket less passengers vide Ex.M.3, who were traveling from Harihara to Duggavathi and so also Way Bills vide Ex.M.5, which determined that the respondent had committed alleged misconduct as stated in the charge memo.

6. Learned counsel for the petitioner further submitted that the Tribunal has not appreciated the aforesaid factual aspects. In absence of the analysis of the aforesaid Ex.M.3 and Ex.M.5, the Tribunal has committed error in allowing the reference and set-aside the penalty order. The Tribunal proceeded to pass an award on the score that the passengers were not examined and the persons who were actually checked the respondent while he was on duty viz., Sri.K.R.Nagaraj and Mohammed Noorulla. On the other hand, the custodian of the record by name Smt.Bebibai was examined. The custodian of the record is sufficient to examine and cross-examine in a domestic enquiry and not the persons, who are the authors of the Inspecting Squad.

7. Per contra, learned counsel for the respondent submitted that non-examination of the Checking Inspecting Squad viz., Sri.K.R.Nagaraj and Mohammed Noorulla in the present case vitiates the entire proceedings. Hence, there is no infirmity in the award passed by the Tribunal. Learned counsel for the respondent also submitted that non-examination of the relevant witnesses is fatal to the case of the petitioner Corporation.

8. Heard learned counsel for the parties.

9. The question for consideration in the present petition is, whether non-examination of the Checking Inspector Squad vitiates the enquiry proceedings or not? Even though Exs.M.3 and 5 are the material evidence against the respondent, at the same time, the Author of the Inspecting Squad viz., Sri.K.R.Nagaraj and Mohammed Noorulla who are the prime witnesses to the present case have not been examined and cross-examined. On the other hand, the custodian of the record namely Smt.Bebibai was examined and cross-examined. The Apex Court in the case of S.C.GIROTRA VS. UNITED COMMERCIAL BANK (UCO BANK) reported in 1995 SUPP(3) SCC 212 (para Nos.3 & 4) it is held as under;

“3. Admittedly, the disciplinary authority whi