Full Judgment
Vineet Kothari, J.
1. This Writ Petition has been filed by the Legal Heirs of the deceased Workman T. Narayan, Ex-Driver of the Respondent NWKRTC. who had unfortunately expired, while matter was pending before the learned Labour Court, Hubli.
2. The present Writ Petition has been filed under Articles 226 and 227 of the Constitution of India against the Order passed by the learned Labour Court, Hubli, dated 10.9.2008, dismissing the Application filed by the Workman vide KID No.30 of 2002 under Section 10(4-A) of the Industrial Disputes Act, 1947 (for brevity, 'the Act'), holding that the dismissal of the Petitioner-Workman from the service w.e.f 27.12.2001 for unauthorised absence, between the period from 19.8.1997 till 1.4.1998. The Charge-sheet was served on him of unauthorised leave, without there being a sanction from the Respondent-Management. Therefore, after holding a Departmental Enquiry, the Disciplinary Authority terminated him from service.
3. He was initially appointed as a Badli Driver in the year 1986 and after completing his Probation in the year 1988, he was confirmed on 24.12.1990. He was transferred on 31.7.1997 to another Division, Ron. Though the present Petitioner is said to have joined at transferred place Ron, but he immediately went on leave from 19.8.1997. Soon thereafter, upon remaining on such unauthorised leave, a Charge-sheet was served upon him anti after holding the Departmental Enquiry, he was dismissed on 27.12.2001. His j Appeal also came to be dismissed on 19.5.2002.
4. The operative portion and the findings given by the learned Labour I Court, Hubli, are quoted below for ready reference:
"12. The length of the period of unauthorized absence had extended over three years from 19.8.1997 till 25.8.2000 when the Petitioner claims to have come back to his normal health (vide Ext.M.9). Dislocation of work and a lot of convenience must have resulted. The Inquiring Authority has quoted a rule in the I Leave Rules of the Respondent providing for the penalty of Dismissal in case of unauthorized absence beyond one year. As rightly observed by the said Authority, the Petitioner being a Union Worker must have been a model to other workers. Considering all the relevant facts, penalty of Dismissal has been inflicted on the Petitioner and the same has been affirmed in Appeal and in my opinion rightly so.
13. The other aspect of the case that remains to be considered is whether the Approval ought to have been obtained for the Order of Dismissal, since Conciliation proceedings were going on at the relevant time. The contention of Sri G.M. Vastrad that the Petitioner ought to have had recourse to Section 33-A of the Act, cannot be accepted since as stated in Jaipur Zila Sahakari case supra the provision enabling the Workmen to file Complaint is intended to save their time and trouble only. Section 33(1 )(b) of the Act, during the pendency of any Conciliation proceedings in respect of an industrial dispute, no Employer shall for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any Workmen, any Workmen concerned in such dispute, save with the express permission of the Authority. The plural 'Workmen' used in Clauses (a) and (d) of sub-section (1) of Section 33 of the Act makes it apparent that the Industrial Dispute referred to in the sub-section has reference to some dispute or difference between Employers and Employers, or between Employers and Workmen, or between Workmen and Workmen, which is connected with the employment or non-employment or the terms of the employment or with the conditions of labour, or of any person. It should be a collective dispute affecting or concerning plurality of Workmen. It certainly does not have reference to Disciplinary proceedings initiated against an individual Workman. What was pending before the Conciliation Officer in the instant case was the so called dispute pertaining to the action taken against the Petitioner because of his unauthorised absence, although he has tried to give a colour of victimization to it by adding an allegation of illegal transfer. In view of this, I am of the view that no Approval was required for the Dismissal under consideration.
14. In the result, the Petition is rejected. But in the peculiar circumstances, there will be no order as to Costs."
5. Learned Counsel for the Petitioner-Workman, Sri Ravi Hegde, has urged before the Court that since another dispute was pending before the Conciliation Officer, the Respondent-Management of NWKRTC ought to have sought an approval in terms of Section 33(1 )(b) of the Act and since the Petitioner himself was a Member of the Executive Committee of the Workmen, without ascertaining the details of the pending matter and without seeking approval thereof, the impugned termination of the Petitioner from the service has been upheld by the learned Labour Court.
6. On the other hand, relying upon a recent decision of this Court, in the case of M/s. Kirloskar Ferrous Industries Ltd. v. K. Shivaramappa and Others, W.P. No.63075-78 of 2010, decided on 9.3.2017, the learned Counsel for the Respondent-Management, Mr. Shivakumar S. Badawadagi, has submitted that the Approval in such cases was not necessary, since the case of the present Petitioner being an unauthorised leave was not in any manner connected with the pending Conciliation proceedings, therefore, the learned Labour Court in Para 13 quoted above has rightly found that no such Approval was necessary for the Dismissal of the Workman.
7. There is no dispute that the Departmental Enquiry 1 was just and fair. Since the unauthorised absence was proved, therefore, the termination was legal. He further submitted that if the Petitioner was aggrieved by his transfer to Ron Division, w.e.f. 31.7.1997, he could have challenged the same before the appropriate forum during the contemporary period, but nothing of this sort was done by him. He further submitted that in view of the death of the Workman even when the proceedings were still pending before the learned Labour Court, the present Petition has become infructuous.
8. Having heard the learned Counsel for the parties, this Court is satisfied that there is no force in the present Writ Petition and the same is liable to be dismissed.
9. This Court in the recent decision in W.P. No.63075-78 of 2010, dated 9.3.2017, M/s. Kirloskar Ferrous Industries Ltd. v. K. Shivaramappa and others, has held as under, explaining the scope of Section 33(1 )(b) of the Act, 1947:
"15. Section 33 of the Act in Chapter VII (Miscellaneous) lays down that during the pendency of any proceedings before the Labour Court or Tribunal, the Employer cannot alter the conditions of the service of Respondents-Workmen except with the specific permission of the Court or Tribunal. However, if such other proceedings are not connected with the dispute pending with such Court or Tribunal, the said action can be taken against the Respondents-Workmen.
16. It would be proper to quote Section 33 of the Act hereunder:
"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-
(1) During the pendency of any Conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before [an Arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an Industrial Dispute, no Employer shall-
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the Workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any Workmen concerned in such dispute.
save with the express permission in writing of the Authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an Industrial Dispute, the Employer may, in accordance with the Standing Orders applicable to a Workman concerned in such dispute or, where there are no such Standing Orders, in accordance with the terms of the Contract, whether express or implied, between him and the Workman],-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that Workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that Workman:
Provided that no such Workman shall be discharged or dismissed, unless he has been paid wages for one month and an Application has been made by the Employer to the Authority before which the proceeding is pending for approval of the action taken by the Employer.
(3) Notwithstanding anything contained in sub-section (2), no Employer shall, during the pendency of any such proceeding in respect of an Industrial Dispute, take any action against any protected Workman concerned in such dispute-
(a) by altering, to the prejudice of such protected Workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected Workman, save with the express permission in writing of the authority before which the proceeding is pending.
Explanation.-For the purposes of this sub-section, a "protected Workman", in relation to an establishment, means a Workman who, being a member of the executive or other office bearer] of a registered Trade Union connected with the establishment, is recognised as such in accordance with Rules made in this behalf.
(4) In every establishment, the number of Workmen to be recognised as protected Workmen for the purposes of sub-section (3) shall be one per cent of the total number of Workmen employed therein subject to a minimum number of five protected Workmen and a maximum number of one hundred protected Workmen and for the aforesaid purpose, the Appropriate Government may make rules providing for the distribution of such protected Workmen among various Trade Unions, if any, connected with the establishment and the manner in which the Workmen may be chosen and recognised as protected Workmen.
(5) Where an Employer makes an Application to a Conciliation Officer, Board, [an Arbitrator, a] Labour Court, Tribunal or National Tribunal under the Proviso to sub-section (2) for Approval of the action taken by him, the Authority concerned shall, without delay, hear such Application and pass, [within a period of three months from the date of receipt of such Application), such Order in relation thereto as it deems fit:]
[Provided that where any such Authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:
Provided further that no proceedings before any such Authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]"
17. Admittedly, in the present case, the Dismissal Order was passed against the Respondents-Workmen on the ground of habitual absenteeism without authorised leave sanctioned by the Management and a Domestic Enquiry was held by independent person namely (an Advocate of Hubli) Mr. Ashok V. Singanamalli. The Charge-sheets were duly served to the Respondents-Workmen and their explanation was also taken. They participated in the Enquiry proceedings and not only recorded their own Statements in defence, but cross-examined the Witnesses produced by the Management. No objections were ever raised at any point of time by them about non-fumishing of the documents or list of Witnesses to them. On the contrary, the proceedings of enquiry held by the Enquiry Officer (an Advocate of Hubli), would show that they actively participated in the Domestic Enquiry and furnished all their possible explanations as their defence. Thus, apparently no prejudice can be said to have been caused to them at all.
18. No reference to any request or prayer has been made by the Industrial Tribunal in the impugned Order from the side of the parties. Even assuming that the learned Industrial Tribunal could go into the question of fairness of the Domestic Enquiry, this Court is little surprised as to without any objection being raised by any of the parties, what prompted the learned Industrial Tribunal to frame the said preliminary issue suo-motu on the basis of the assumed facts and decided the same against the Management. The impugned Order thus is found to be baseless and foundationless.
19. The learned Industrial Tribunal under the provisions of Section 33(l)(b) of the Act was required to either approve or not to approve the Dismissal Orders passed by the Competent Authority, while deciding the Serial Applications filed under Section 33(l)(b) of the Act. Instead of doing that, the learned Industrial Tribunal chose to pass the impugned Interlocutory Order, which is absolutely off the mark and beyond the scope of Section 33(l)(b) of the Act.
23. In the present case, this Court finds that instead of exercising the jurisdiction under Section 33(1 )(b) of the Act, even though the dismissal on the ground of Respondents-Workmen being found guilty of unauthorized absence, even though a matter not connected with the dispute pending before the learned Industrial Tribunal in case KID No.2 of 2006, but instead of applying its mind to the same, to extend the helping hand to the Respondents-Workmen, which in law was iuk permissible for the Industrial Tribunal to do so, the learned Industrial Tribunal passed the aforesaid impugned Order and now 10 years have passed without knowing the fate of the Serial Applications filed under Section 33(l)(b) of the Act.
24. The learned Presiding Officers of such Tribunal are expected to know the scope of the proceedings under which the Applications are moved before them and are not expected to go astray and away from the scope of the Applications and relevant Statutory provisions themselves.
25. The Writ Petitions of the Management are, therefore, allowed. The Interlocutory Order passed by the learned Industrial Tribunal, Hubli at Annexure-H dated 4.3.2010 is set aside."
10. In view of the aforesaid legal position, this Court does not find any error in the Order passed by the learned Labour Court, Hubli and the matter of unauthorised absence of the present Petitioner-Workman being not established to be connected with the already pending dispute in any manner, the learned Labour Court was right in holding that no Approval under Section 33(1 )(b) of the Act was required to be taken by the Respondent-Management.
11. The Petitioner-Workman never challenged his transfer in the contemporary period and he could not determine himself as to whether his transfer to Ron Division was in accordance with the Rules or not' Without a proper leave being sanctioned in his favour, he could not remain unauthorisedly absent. There is no dispute that the Enquiry was just and fair, which was held after compliance with the Principles of Natural Justice.
12. In view of the aforesaid, this Court is satisfied that there is no error in the impugned Order passed by the learned Labour Court nor there is any force in the Writ Petition.
13. Accordingly, the Writ Petition filed by the Workman is liable to be dismissed and the same is dismissed.
No Costs.