Judicial review is warranted when a disciplinary proceeding is deemed unfair, and penalties cannot be upheld if misconduct is not proven.

CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE HC-KAR ORAL COMMON ORDER Writ petition No.44850/2019 is filed by the workman assailing the award dated 25.01.2018 in I.D. No.213/2011 on the file of Industrial Tribunal, Bangalore. In terms of the said award, the penalty withholding five annual increments with cumulative effect and penalty treating suspension period as suspension and ordering for recovery of Rs.5,000/-

in 25 equal instalment are not disturbed.

2. Thus, the petitioner is aggrieved by the penalty imposed by the Industrial Tribunal in terms of the impugned award.

3. Questioning the very same award, the employer is also before this Court in writ petition No.44063/2018. (Petitioner/workman in W.P. No.44850/2019 is referred to as petitioner in both petitions and petitioner/employer in W.P. No.44063/2018 is referred to as employer in both the petitions).

4. Certain facts are not in dispute. The petitioner is employed under the respondent. Alleging misconduct of not HC-KAR issuing ticket after having collected fare from the passenger. The disciplinary enquiry was initiated against the petitioner. The petitioner denied the charges. The disciplinary authority found the petitioner guilty of misconduct and thereafter, imposed a penalty withholding five annual increments with cumulative effect.

5. Before the Industrial Tribunal, the petitioner raised a contention that the enquiry is not fair and proper. The Industrial Tribunal gives a finding that the enquiry is fair and proper and opportunity is given to the parties to lead evidence.

6. The respondent/management did not lead evidence to substantiate its contention that petitioner is guilty of misconduct. Thereafter, the petitioner has also not led evidence on the premise that there was no evidence against him led by the employer before the Tribunal.

7. Referring to the evidence led before the disciplinary authority, the Tribunal concluded that the petitioner is guilty of misconduct. However, observing that HC-KAR the penalty imposed is disproportionate to the misconduct alleged, reduced the penalty as noted above.

8. Learned counsel for the petitioner would submit that Tribunal could not have referred to the evidence led before the disciplinary authority as it has already concluded that the enquiry is not fair and proper. The finding of guilt by the Tribunal is based on the evidence from an enquiry which is held to be not proper is impermissible. The respondent/management has not questioned the order holding the enquiry as invalid and this being the position, the Tribunal should have set-aside the entire penalty imposed by the management. Thus, he would urge that the writ petition be allowed.

9. Learned counsel for the respondent/management would submit that there is an inordinate delay and laches on the part of the petitioner in approaching the Tribunal and raising a dispute. He would submit that though there is no specific challenge to the order passed by the Tribunal holding that disciplinary enquiry was not fair and proper. The said HC-KAR order merges with the final order and final order is questioned before this Court, as such, the respondent is entitled to urge that the enquiry was fair and proper.

10. In addition he would also submit that the petitioner has not led any evidence to substantiate the contention that he is not guilty of misconduct. This is one of the reasons assigned by the Tribunal in holding that the petitioner is guilty of misconduct and there is no reason to interfere with the said finding of the Tribunal which has held the petitioner is guilty of misconduct.

11. Referring to the grounds urged in the petition filed by the management, it is submitted that there is no discussion on the contention raised by the respondent relating to the delay in raising industrial dispute as such, he would urge