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2018 DIGILAW 327 (KAR)

Management of KSRTC v. RI Siddaraj R. V.

2018-03-06

L.NARAYANA SWAMY

body2018
JUDGMENT : L. NARAYANA SWAMY, J. 1. The respondent-workmen was charge sheeted for a misconduct that he was unauthorisedly absent. The charge sheet dated 16th July 2007 is produced as Annexure-A. The charge leveled against the workman is that with effect from 26th February 2007, he remained absent unauthorisedly without submitting leave application and was directed to make a reply. Though the respondent-workman was served, but he remained absent and he has not made any reply. Thereafter enquiry officer was appointed and enquiry proceedings commenced and it has resulted in holding, the charge is proved and the punishment order of dismissal from service dated 28th October 2010 came to be passed. The said dismissal order was issued in pursuance to Regulation 19(2) of the Karnataka State Road Transport Corporation Employees Service Regulations, 1971. The impugned order was challenged in Reference No.24 of 2012 before the Labour Court, Bangalore. On issuance of notice, the petitioner-respondent before the Labour Court appeared and filed written statement and submitted that the charges were proved and the respondent was given fullest opportunity and he has not highlighted any irregularity in the proceedings and hence it is submitted to dismiss the application filed. The Labour Court, by its order dated 8th January 2014 passed orders under Section 10(1)(c)(d) of the Industrial Disputes Act, allowing the reference and set aside the dismissal order dated 28th October 2010. Further the petitioner herein was directed to reinstate the respondent first party into service within one month from the date of the order with full back-wages from the date of dismissal order till reinstatement and with consequential benefits. The order dated 08th January 2014 passed by the Labour is impugned in this petition and the prayer is to aside the said award. 2. The grounds taken by the learned counsel appearing for the petitioner is that the award passed by the Labour Court is an error of law and fact and the same is liable to set aside. The reasons assigned by the Labour Court on the ground that the dismissal of the first party from service is in contravention of Section 33(2)(b) of the Act. It is further held that obtaining prior approval under the said provision is mandatory and in support of its reasons, the Labour Court referred the judgment of the Hon'ble Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMO VIKAS BANK LTD. It is further held that obtaining prior approval under the said provision is mandatory and in support of its reasons, the Labour Court referred the judgment of the Hon'ble Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMO VIKAS BANK LTD. v. RAM GOPAL SHARMA AND OTHERS, (2002) 1 LLJ 834 and observed that dismissing a person without compliance of Section 33(2)(b) of the Act is arbitrary. The Labour Court also referred to the judgment of this Court in Writ Petition No.36412 of 2011 disposed of on 24th November 2011 in the case of V. SELVARAJU v. THE DIVISIONAL CONTROLLER, KSRTC, KOLAR. The grounds urged by the petitioner is that obtaining permission under Section 33(2)(b) of the Act is not correct unless it is connected with dispute pending between the employer and employee. It is submitted that there was dispute pending in a charter of demands and the respondent was dismissed not on the fact attributing to the pendency of the dispute; but, it is for the specific case that the workman was unauthorisedly absent for considerable length and despite sending notice, the workman has not turned-up. Thereafter, charge sheet was issued and for that also the workman has not responded. Hence, after due enquiry the charges leveled against the respondent workman was held proved. Under the circumstance, taking prior permission under Section 33(2)(b) of the Act is not applicable. Accordingly the order passed by the Labour Court setting aside the dismissal order is arbitrary and in contravention of provisions of the Act. The learned counsel has also referred to the judgment of this Court in Writ Petition No.50334 of 2013 between DIVISIONAL CONTROLLER, NEKRTC, BIJAPUR v. HEMARADDI disposed of on 06th February 2014 wherein it is held that merely allowing the reference by the Labour Court for noncompliance of Section 33(2)(b) is non-est. If the application made by the employee questioning the punishment of dismissal or discharge, then it is to be examined as to whether the punishment order is justifiable or in contravention of any other provisions. Unless the same has not been gone into and examined, mere setting aside the dismissal order for noncompliance of Section 33(2)(b) of the Act and directing the management to reinstate the workman and to pay back-wages and other consequential benefits is an error. Unless the same has not been gone into and examined, mere setting aside the dismissal order for noncompliance of Section 33(2)(b) of the Act and directing the management to reinstate the workman and to pay back-wages and other consequential benefits is an error. The learned counsel also referred the judgment of the Hon'ble Supreme Court in the case of MANAGING DIRECTOR, NEKRTC, KARNATAKA v. SHIVASHARANAPPA in Civil Appeal No.(S) 9956 of 2017 disposed of on 01st August 2017 wherein it is held that merely interfering with the punishment imposed without adjudicating the validity of the dismissal is a non-est and it is submitted that whether the case of the respondent falls under Section 33(2)(b) of the Act or not shall be examined and further dismissal could be justifiable in the light of the charge or imputation of charges has to be gone into. 3. The learned counsel for the respondent submits to dismiss the petition. He submits that when undisputedly the dispute is pending on the file of the Labour Court in ID No.148 of 2005 in which the respondent is a member of the Union and the during pendency of the said dispute, no punitive action should be taken without prior permission under Section 33(2)(b) of the Act. He also submits that the petitioner has committed a grave error in filing such application and dismissing the petition on the face of it is arbitrary and contravention of Section 33(2)(b) of the Act. In support of his submissions, he referred to the judgment of this Court in Writ Petition No.33847 of 2011 and connected petitions disposed of on 23rd February 2012; and another judgment in Writ Petition No.36412 of 2011 disposed of on 24th November 2011 and submitted that in similar circumstances this Court held that prior permission under Section 33(2)(b) of the Act is mandatory. 4. Heard the learned counsel for the parties. It is undisputed fact that there is a dispute between the employer and employee in ID 148 of 2005 on various charter of demands. It is also undisputed fact that the respondent is a member of the Union and he is also a party to the dispute. When such is the case, the question would be whether the person could be punished without attributing to the dispute pending before the Labour Court. It is also undisputed fact that the respondent is a member of the Union and he is also a party to the dispute. When such is the case, the question would be whether the person could be punished without attributing to the dispute pending before the Labour Court. In order to answer the said proposition what is relevant is to examine Section 33(2)(b) of the ID Act. The said provision was inserted with effect from 10th March 1996. It contemplates that during pendency of any conciliation proceedings before the conciliation officer or before the Labour Court, no employer shall be discharged/dismissed or punished for any misconduct not connected with the dispute. The plain reading of the said Section shows further that no employer shall punish a person when there is a dispute pending before the authority unless it is connected to any other dispute. Clause (b) makes it clear that "any misconduct not connected with the dispute" the employer shall not dismiss/discharge an employee. 5. Further, it is examined that the dispute was pending before the competent authority in respect of a separate charter of demand. As per the charge sheet, it does not say anything about the pendency of the dispute. However, he has been charge sheeted for unauthorized absence since 16th February 2007 and he was issued with notice to the registered address, given fullest opportunity and thereafter enquiry officer was appointed, in the enquiry also he remained absent and the employer examined witnesses and marked documents as per Exhibits M1 to M3; and on behalf of the respondent none has been examined and no documents have been marked since he was placed ex-parte. The charge leveled against the workmen is proved, which thereafter resulted in his dismissal from service. In view of the charge sheet, and the enquiry proceedings the dismissal order goes to show that the respondent was punished by dismissing from service not with reference to the dispute pending, but it is in regard to proved misconduct of unauthorised absence. When a person is dismissed of proved misconduct it falls under clause (b) of Sub-Section (2) of Section 33 of the Act, viz. that the punishment was imposed for misconduct which is not connected with the dispute. When a person is dismissed of proved misconduct it falls under clause (b) of Sub-Section (2) of Section 33 of the Act, viz. that the punishment was imposed for misconduct which is not connected with the dispute. Under the circumstances, the action of the respondent is held proper and in accordance with the established principles of natural justice and in confirmation of the petitioner's standing order. 6. When dispute is pending between the employer and the employee it is clear from the above section that no employee shall be punished in order to take vengeance for having raised dispute. If at all an employee is to be dismissed then they have to take prior permission under the provisions of the Act. But in case of the workman indulges himself by committing any offence for the purpose of standing order or involved in any criminal case in which he was charged or punished, then it does not fall under the provision of Section 33(2)(b) of the Act and when a person is punished or discharged or dismissed from service and in case if it is challenged before the Labour Court, this Court in the case of DIVISIONAL CONTROLLER KSRTC, v. M. RAMASWAMY in Writ Petition No.15110 of 2013 disposed of on 12th September 2013 has observed that "the Labour Court fell in error in not answering issue No.4 over justification of the dismissal from service by recording reasons and findings. Had the Labour Court expressed its opinion over whether the petitioner was justified in terminating the services of the workman for remaining unauthorisedly absent for 157 days, perhaps the court could have examined the question of award of full back-wages or otherwise." 7. The Hon'ble Supreme Court in the case of SHIVASHARANAPPA at paragraph 4 of the judgment has observed thus: Is the High Court correct in taking the view as noticed above? The Hon'ble Supreme Court in the case of SHIVASHARANAPPA at paragraph 4 of the judgment has observed thus: Is the High Court correct in taking the view as noticed above? In Management of Karur Vysya Bank Ltd. V. S. Balakrishnan while dealing with a situation of absence of any approval under Section 33(2)(b) of the Act read with Section 33A thereof, this Court had taken the view that a finding on the question as to whether the employer has contravened the provisions of section 33(2)(b) would not be conclusive of the matter and the industrial adjudicator is required to answer the further question as to whether the dismissal or such other punishment as may have been imposed on the workman is justified in law." 8. Further, in paragraph 5 of the said judgment it is observed thus: "The same, as already held by this court, could not have authorized the High Court to interfere with the punishment imposed without an adjudication on the validity of the dismissal." 9. In the light of the above, it is held that when an employee, in case if he is dismissed/discharged from service merely on the ground that he was a member of the Union who instituted the proceedings in respect of the award, or any charter of demand and on the other hand if the employee is punished on the proved misconduct may be by domestic enquiry, then it may not attract Section 33(2)(b) of the Act and in case if the employee challenges the dismissal order by taking the ground that it is in contravention of Section 33(2)(b) of the Act without seeking permission, then it is not automatic that the Labour Court to direct the management to reinstate the workman with full back-wages. On the other hand, as it is held by this Court and also by the Hon'ble Supreme Court in the cases cited supra, the Labour Court has to go into the matter on merits and has to decide. For the above reasons, the petitioner has to succeed. Accordingly, the petition is allowed. Order dated 08th January 2014 passed in Ref No.24 of 2012 by the Labour Court, Bangalore is set aside and stands remanded to pass fresh orders in accordance with law and in the light of the observation made above. Since the employee is retired and has also died, the legal representatives are on record. Accordingly, the petition is allowed. Order dated 08th January 2014 passed in Ref No.24 of 2012 by the Labour Court, Bangalore is set aside and stands remanded to pass fresh orders in accordance with law and in the light of the observation made above. Since the employee is retired and has also died, the legal representatives are on record. In that view of the matter, the question of reinstatement does not arise. Hence, the Legal Representatives are entitled for back-wages in case if they succeed.