- 1 - WP No.31160 of 2013 C/W WP No.19776 of 2013 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ W.P.NO.31160 OF2013(L-KSRTC) C/W W.P.NO.19776 OF2013(L-KSRTC) IN W.P.NO.31160 OF2013BETWEEN: SRI. B S SURESH S/O SRI B V SUBBA RAO AGED ABOUT61YEARS R/A TYPE-3, R.C.E. CAMPUS MANASAGANGOTHRI MYSORE - 570 006. ...PETITIONER (BY SRI V S NAIK, ADVOCATE) AND:
1. . THE CHIEF MECHANICAL ENGINEER AND APPELLATE AUTHORITY KSRTC, CENTRAL OFFICES K.H.ROAD, SHANTINAGAR BANGALORE - 560 027. 2 . THE DIVISIONAL CONTROLLER KSRTC, MYSORE URBAN DIVISION BANNIMANTAP ROAD MYSORE - 570 001. …RESPONDENTS (BY Ms. H R RENUKA, ADVOCATE ) - 2 - WP No.31160 of 2013 C/W WP No.19776 of 2013 THIS W.P. IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM LABOUR COURT, MYSORE, PERTAINING TO ANNEX-F AND QUASH THE AWARD PASSED BY THE LABOUR COURT, MYSORE, IN COMPLAINT NO.25/2004 DTD.5.3.2012 THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED AS ANNEX-F TO THE EXTENT THE PETITIONER IS AGGRIEVED AND ETC., IN W.P.NO.19776 OF2013BETWEEN:
1. . KARNATAKA STATE ROAD TRANSPORT CORPORATION SHANTHINAGAR, BANGALORE- 27. BY ITS CHIEF MECHANICAL ENGINEER, (P) AND APPELLATE AUTHORITY SHANTHINAGAR, BANGALORE - 27 REPRESENTED BY ITS CHIEF LAW OFFICER. 2 . KARNATAKA STATE ROAD TRANSPORT CORPORATION,MYSORE URBAN DIVISION, BANNIMANTAP ROAD, MYSORE, BY ITS DIVISIONAL CONTROLLER REPRESENTED BY ITS CHIEF LAW OFFICER. ...PETITIONERS (BY MS. H R RENUKA, ADVOCATE) AND: B S SURESH S/O B.V. SUBBARAO, AGED ABOUT61YEARS, TYPE3 RCE CAMPUS - 3 - WP No.31160 of 2013 C/W WP No.19776 of 2013 MANASAGANGOTRI, MYSORE - 570 006. …RESPONDENT (BY SRI. V S NAIK, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE AWARD DATED:5.3.2012 PASSED BY THE LABOUR COURT, MYSORE IN COMPLAINT NO.25/2004 VIDE ANN-N AND ETC. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER
S COMING ON FOR PRONOUNCEMENT OF ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 In W.P.No.31160/2013, the workman is before this Court seeking for the following reliefs:
"1. ISSUE A WRIT OF CERTIORARI or any other appropriate writ, or direction quashing the Award passed by the Labour Court, Mysore, in Complaint No.25/2004 dated 5.3.2012 the certified copy of which is produced and marked as ANNEXURE-F to the extent the Petitioner is aggrieved.
2. ISSUE A WRIT OF MANDAMUS or any other appropriate writ, or direction directing the Respondents to extend all consequential benefits such as, full back wages, leave encashment, provident fund benefit, periodical pay fixation, etc., with effect from 18.10.1993 till the date of retirement along with interest at 12%.-. 4 - WP No.31160 of 2013 C/W WP No.19776 of 2013 3. GRANT SUCH OTHER RELIEF or reliefs as deemed necessary to meet the ends of justice.
2. In W.P.No.19776/2013, the Employer-Road Transport Corporation (RTC) is before this Court seeking for the following reliefs:
"1. Issue a writ of certiorari or any other appropriate writ, direction or order quashing the award dated 5.3.2012 passed by the Labour Court, Mysore in Complaint No.25/2004 (Annexure-N).
2. Such other writ, direction or order that this Hon'ble Court deem just and expedient in the circumstances of the case.
3. The workman was employed as a driver with the Road Transport Corporation. On 8.10.1993, he was relieved from the post at Divisional Office, Traffic Section and was transferred to City I Depot, Mysore. Since the workman did not report to the said Depot, Depot Manager submitted a report on 06.12.1993 informing that the workman has not reported for duty.-. 5 - WP No.31160 of 2013 C/W WP No.19776 of 2013 4. On 11.12.1993, a call notice was issued directing the workman to report for duty and since he had not reported for duty, on 3.1.1994, Disciplinary Authority issued Articles of Charge alleging unauthorized absence from 08.10.1993. An enquiry was instituted, an Enquiry Officer was appointed who conducted the enquiry, wherein the workman participated. The Enquiry Officer submitted his report that the charges are proved.
5. The Disciplinary Authority accepted the findings and issued the second show cause notice, since reply there to was not acceptable, Disciplinary Authority dismissed the respondent from service on 22.6.1994.
6. Aggrieved by the said dismissal, the workman filed an appeal on 20.07.1994 before the Appellate Authority. Simultaneously, the workman also filed a claim petition under Section 10 (4-A) of I.D. Act, on - 6 - WP No.31160 of 2013 C/W WP No.19776 of 2013 25.7.1994 before the Industrial Tribunal, Mysore, which came to be numbered as IID711994.
7. While IID711994 was pending, the Appellate Authority, vide its order dated 04.04.1995 allowed the appeal filed by the workman in part by directing the reinstatement of the workman without back wages from the date of relieving of the workman till he reports for duty, it was further held that the period of absence for the aforesaid period would be treated as on leave to the credit of the workman and the remaining period was treated as not on duty that the same would be considered for financial benefits.
8. In pursuance of the order dated 04.04.1995 of the Appellate Authority, the Road Transport Corporation issued a call notice to the workman on 15.04.1995 which was received by the workman. Despite the receipt thereof the workman not having reported to duty, on 18.2.1998 the Disciplinary Authority - 7 - WP No.31160 of 2013 C/W WP No.19776 of 2013 forfeited the right to appointment granted by the Appellate Authority on 04.04.1995.
9. A complaint came to be filed by the workman in Complaint No.25/2004 alleging contravention of Section 33 A of the I.D. Act. While the said complaint was pending, the Labour Court rejected the Claim petition filed under Section 10(4-A) of the I.D. Act, vide its order dated 30.10.2007 by holding that the order under challenge before it had merged with the order dated 4.4.1995 passed by the Appellate Authority and that there is nothing more which survives for consideration.
10. It is thereafter, the complaint was taken up for consideration and the Labour Court vide its order dated 05.03.2012 allowed the complaint in part by setting aside the order dated 18.02.1998 forfeiting the right to appointment of the workman and held that the workman is deemed to be in service from - 8 - WP No.31160 of 2013 C/W WP No.19776 of 2013 the date of forfeiture i.e. 18.02.1998 till the date of superannuation and as such, he is entitled for full back wages from 18.02.1998 till superannuation with all consequential financial benefits under law.
11. It is aggrieved by the same, the Road Transport Corporation is before this Court in W.P.No.19776/2013 seeking for the aforesaid reliefs and the workman is before this Court in W.P.No.31160/2013 seeking for the aforesaid reliefs.
12. Ms.H.R.Renuka, learned counsel for the Road Transport Corporation would submit that 12.1. the workman having filed an appeal challenging the order of dismissal before the Appellate Authority on 20.7.1994 followed by the claim petition under Section 10(4-A) of the I.D. Act before the Industrial Tribunal, Mysore, on 25.07.1994, the appeal having been allowed - 9 - WP No.31160 of 2013 C/W WP No.19776 of 2013 and the workman reinstated vide order dated 04.04.1995, there is no dispute, as such, which was pending between the Road Transport Corporation and the workman. 12.2. The proceedings in IID No.71/1994 which was renumbered as IID No.43/2001 continued until its disposal in the year 2007 that is on 30.10.2007, wherein the Industrial Tribunal has held that the order impugned in those proceedings were merged with the order of the Appellate Authority. The said order is innocuous order. 12.3. The dispute having been resolved by the order of the Appellate Authority dated 04.04.1995, there was no dispute as such pending between the Road Transport Corporation and the workman and therefore, the Labour Court while dealing with the complaint 25/2004 ought not to have come to a conclusion that the requirement of Section 33, (2 B) have not been - 10 - WP No.31160 of 2013 C/W WP No.19776 of 2013 followed and there is a violation of Section 33A of the I.D. Act. 12.4. in the complaint which had been filed, only allegations were made as regards the Articles of Charge and enquiry which had been instituted in the year 1993 and 1994. The said enquiry and order having been set aside, the allegations made in the complaint insofar as said enquiry and order of dismissal did not survive for consideration. 12.5. Much of the allegations have been made in the complaint is as regards dismissal of the workman which has been set aside by the Appellate Authority then the question of making such a complaint in the year 2004 would not arise. 12.6. The only contention raised as regards the order dated 18.2.1998 forfeiting the right of reinstatement is that, at the time of passing of the said order IID No.71/1994 was pending and - 11 - WP No.31160 of 2013 C/W WP No.19776 of 2013 permission from the Labour Court ought to have been obtained under Section 33 of the I.D. Act. 12.7. mere pendency of IID No.71/1994 would not amount to pendency of the dispute and dispute having been resolved in the year 1995 by the order of the Appellate Authority and therefore, the Labour Court ought to have appreciated this aspect and not come to the conclusion that there is violation of 33 (2) (B) of I.D. Act.
13. Mr. V.S. Naik, learned counsel for the workman submits that 13.1. the fact remains that IID No.71/1994 which came to be renumbered as IID No.43/2001 was pending as on the date of the order of forfeiture which was made in the year 1998. The said IID has been disposed by order dated 30.10.2007 subsequently.-. 12 - WP No.31160 of 2013 C/W WP No.19776 of 2013 13.2. The order of forfeiture having been made during the pendency of IID432001, the rigor of Section 33 (2)(B) of ID Act would apply with all force and the same having not been followed and permission not having been obtained, the order passed by the Labour Court is proper and correct. He however submits that the Labour Court while directing the payment of back wages from 18.2.1998 till superannuation, has erred for the reason that the reinstatement should have been from the date on which the workman was removed from service that is 22.6.1994 and back wages ought to have been awarded from that date till superannuation along with all consequential benefits.
14. Heard Ms.H.R. Renuka, learned counsel for the Road Transport Corporation and Mr.V.S. Naik, learned counsel for workman and perused the documents.-. 13 - WP No.31160 of 2013 C/W WP No.19776 of 2013 15. On the basis of the submissions which have been made by both the counsel, the points that would arise for consideration by this Court are as below:
1. Whether mere pendency of proceedings before the Labour Court/Industrial Tribunal would be sufficient for making applicable the requirements under Section 33 (2)(b) of the Industrial Disputes Act, 1947, more so, when the dispute itself has been resolved?.
2. When a workman has availed the right of Statutory Appeal as also right to file a claim petition under Section 10(4A) of the Industrial Disputes Act, 1947, in the event of either one of the proceedings being disposed, what would be the status of the other proceedings?.
3. As a corollary to point No.2, in the event statutory appeal having been allowed in favour of the workman, could workman still contend that the industrial dispute is pending in the claim petition filed under Section 10 (4A) of Industrial Disputes Act, 1947 before the Labour Court and as such the rigor of section 33 (2)(b) of Industrial Disputes Act, 1947, would be applicable?. - 14 - WP No.31160 of 2013 C/W WP No.19776 of 2013 4. In the present case, whether the order passed by the Labour Court in Complaint No.25/2004 is proper and correct or does it suffer from illegality or infirmity?.
5. What order?.
16. I answer the above points as under 17. Answer to Point No.1: Whether mere pendency of proceedings before the Labour Court/Industrial Tribunal would be sufficient for making applicable the requirements under Section 33 (2)(b) of the Industrial Disputes Act, 1947, more so, when the dispute itself has been resolved?. 17.1. Section 33 (2) of I.D.Act reads as under:- 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (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 - 15 - WP No.31160 of 2013 C/W WP No.19776 of 2013 (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. Thus, in the event of pendency of any industrial dispute in terms of proviso to Sub-Section (2) of Section 33, no workman could be discharged or dismissed unless he has been paid wages for one month and an application being made by the employer to the authority before which the proceedings are pending for approval of the action taken by the employer. As a corollary, until and unless, the wages are paid and/or approval is taken, no discharge or dismissal can be made. 17.2. The present case is a peculiar one inasmuch as the dispute between the employer and the workman is as regards the dismissal of the - 16 - WP No.31160 of 2013 C/W WP No.19776 of 2013 workman by the employer on 22.06.1994. At that stage, the workman had an option either to file a statutory appeal or to approach the Labour Court. In the present case, the workman chose to do both. He filed an appeal before the Appellate Authority on 20.07.1994 and filed a claim petition before the Industrial Tribunal on 25.07.1994. 17.3. The Appellate Authority by way of its order dated 04.04.1995 allowed the appeal filed by the workman in part by directing reinstatement of the workman without backwages from the date of relieving of the workman till he reports for the duty. The order of dismissal dated 22.06.1994 which had given raise to dispute, the said dispute came to an end on 04.04.1995. 17.4. In my considered opinion when the Appellate Authority had allowed the appeal in favour of the workman, the proceedings before the Industrial Tribunal in IID No.71/1994 which - 17 - WP No.31160 of 2013 C/W WP No.19776 of 2013 came to be renumbered as IID No.43/2001 had become infructuous on 04.04.1995 itself. 17.5. There was no lis or dispute which was required to be considered by the Industrial Tribunal in IID.No.71/1994 since the very dismissal order which was under challenge in those proceedings had already been set aside by the Appellate Authority on 04.04.1995. Thus, both the employer and the workman were required to act in terms of the order dated 04.04.1995, the respondent being required to reinstate, and the workman required to report to duty. 17.6. Thus, the pendency of the industrial dispute before the Labour Court which was initially numbered as IID No.71/1994 and subsequently, renumbered as IID No.43/2001 had become infructuous on 04.04.1995 and mere pendency of a dead proceedings, in my considered view would not be sufficient to make applicable the proviso of Section 33(2)(b) of - 18 - WP No.31160 of 2013 C/W WP No.19776 of 2013 I.D.Act or the proviso thereof when the dispute itself had been resolved.
18. Answer to Point No.2: When a workman has availed the right of a Statutory Appeal as also right to file a claim petition under Section 10(4A) of the Industrial Disputes Act, 1947, in the event of either one of the proceedings being disposed, what would be the status of the other proceedings?. 18.1. As answered as regards Point No.1 the workman himself having availed the right of statutory appeal and the said appeal having been disposed in favour of the workman, which was to the knowledge of the workman and the workman could not have continued the industrial dispute under Section 10 (4-A) of I.D.Act. 18.2. The converse would also have been true. In that, if the claim petition under Section 10 (4- A) of I.D.Act had been disposed, the continuation with the statutory appeal would also not arise. This being so, for the reason that - 19 - WP No.31160 of 2013 C/W WP No.19776 of 2013 the dispute itself had been resolved when the final order had been passed, which at the most could have been challenged and if not so challenged, it was required to be implemented. 18.3. It is clear that if one of the proceedings be it either a statutory appeal or the dispute being disposed, the other proceedings would have been rendered infructuous. 18.4. Hence, I answer Point No.2 by holding that when the workman has availed a right of a statutory appeal as also right of filing a claim petition under section 10 (4-A) of ID Act, in the event of either one of the proceedings being disposed, the other proceedings would become infructuous and be required to be dismissed as such.
19. Answer to Point No.3: As a corollary to point No.2, in the event statutory appeal having been allowed in favour of the workman, could workman still contend that the industrial dispute is pending in the claim petition filed under Section 10 (4A) before the Labour - 20 - WP No.31160 of 2013 C/W WP No.19776 of 2013 Court and as such the rigor of section 33 (2)(b) of Industrial would be applicable?. 19.1. In view of findings as regards Point Nos.1 and 2, I am of the considered opinion that once the statutory appeal had been disposed of in favour of the workman and in furtherance of the same, a call notice came to be issued by the employer to the workman on 05.04.1995 which is admitted to have been received by the workman but the workman did not report to duty. 19.2. On issuance of the call notice, the employer has complied with its obligations under the order dated 04.04.1995 passed by the Appellate Authority, thereafter, it was for the workman to have reported to duty so as to comply with the order dated 04.04.1995. The workman did not report for duty.-. 21 - WP No.31160 of 2013 C/W WP No.19776 of 2013 19.3. The only option that was available for the workman was to report to duty and not keep the industrial disputes pending knowing fully well that the statutory appeal had been disposed in his favour. It was for the workman to have reported to duty immediately after the order has passed or atleast after the call notice was issued. 19.4. The rigor of Section 33 (2)(b) of I.D.Act or proviso thereof would not be applicable once the statutory appeal had been disposed.
20. Answer to point No.4: In the present case, whether the order passed by the Labour Court in Complaint No.25/2004 is proper and correct or does it suffer from illegality or infirmity?. 20.1. In view of the finding as regards Points No.1, 2 and 3, I am of the considered opinion that the Labour Court could not have entertained the Complaint No.25/2004 since, by that time, the statutory appeal had already been disposed and - 22 - WP No.31160 of 2013 C/W WP No.19776 of 2013 the allegations made in the complaint being that the order of forfeiture dated 18.02.1998 which had been passed on account of the workman not reporting to work in compliance of the call notice dated 15.04.1995, the workman had forfeited the right for reinstatement granted in the statutory appeal and could not have been considered since it is the workman who had defaulted in reporting to work. 20.2. If at all the workman had reported to work in furtherance of the order passed in the statutory appeal or the call notice, the question of forfeiture would not even have arisen. The workman being a default, he cannot take advantage of his own defaults and/or wrongs. 20.3. As observed above, once the order in the statutory appeal had been passed, it was for the workman to have reported to duty by himself, which he did not do. The employer also issued a call notice calling upon the workman to - 23 - WP No.31160 of 2013 C/W WP No.19776 of 2013 report work, despite which, the workman did not report to work. Thus, I am of the considered opinion that the workman is at fault, which has not been considered by the Labour Court in a proper perspective in Complaint No.25/2004, the dispute itself having been resolved by the order passed in the statutory appeal, the rigor of Section 33 (2)(b) of I.D.Act and proviso thereof not being applicable, the Complaint No.25/2004 ought to have been dismissed. 20.4. I answer Point No.4 by holding that the order passed by the Labour Court in Complaint No.25/2004 is not proper and correct and the Labour Court has not been taken into account the legal position thereof and as such, it is required to be set aside.
21. Answer to Point No.5: What order: - 24 - WP No.31160 of 2013 C/W WP No.19776 of 2013
1) W.P.No.31160/2013 filed by the petitioner – workman is dismissed.
2) W.P.No.19776/2013 filed by the Road Transport Corporation is allowed.
3) The order dated 05.03.2012 passed by the Labour Court at Mysore in Complaint No.25/2004 is set aside.
4) The order of forfeiture dated 18.02.1998 passed by the employer is confirmed.
5) Needless to say that the workman would not be entitled to any benefits consequential or otherwise. Sd/- JUDGE tsn* /prs