Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2024 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 5648 OF 2021 (L-KSRTC) BETWEEN: THE DIVISIONAL CONTROLLER, KARNATAKA STATE ROAD TRANSPORT CORPORATION (KSRTC), BENGALURU RURAL DIVISION, HEREIN REPRESENTED BY THE CHIEF LAW OFFICER. K.S.R.T.C., CENTRAL OFFICES, K.H.ROAD, SHANTHI NAGAR, BENGALURU-560 027. …PETITIONER (BY SRI. B.L.SANJEEV., ADVOCATE) AND: SRI. RAMASWAMY S/O NANJAPPA, AGED ABOUT 63 YEARS, REPRESENTED BY THE GENERAL SECRETARY, KSRTC AND BMTC UNITED EMPLOYEES UNION, Digitally signed by NO.23, 4TH MAIN ROAD, PREMCHANDRA MATHIKERE EXTENSION, BANGALORE-54. MR
Location: High …RESPONDENT Court of (BY SMT. NAGARATHNA., ADVOCATE FOR Karnataka SRI. L.SHEKAR., ADVOCATE)THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN 'B' GROUP. THIS DAY, AN ORDER IS MADE AS UNDER: -2-
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE JYOTI MULIMANI) Sri.B.L.Sanjeev., learned counsel for the petitioner and Smt.Nagarathna., learned counsel on behalf of Sri.L.Shekar., for the respondent have appeared in person.
2. The short facts are these:
The respondent Ramaswamy was a Driver in the establishment of the Corporation. On 04.12.1994, he was discharging his duties as Driver in the bus that belonged to the Corporation bearing Registration No.KA-01-F-5427 that was plying on the route from Anekal to Bengaluru, near Rupena Agrahara (Hosur Road) at about 11:45 am., a Lorry bearing Registration No.9445 hit against a TVS Champ bearing Registration No.4970 and due to the impact, the rider of the TVS fell on the left side of the road and the pillion rider fell and got caught to the right side wheel of the bus and died. The respondent was issued with articles of charge. Thereafter,
taking into consideration the relevant records, vide order
dated:23.05.1995 imposed punishment of stoppage of two increments of the respondent cumulatively by exercising -3- powers vested under Rule (2) Part 3 of the KSRTC Employees (C & D) Regulations, as amended in 1992 and in accordance with Regulation 18-A(vi) of the KSRTC servants (C & D) Regulations, 1971. Aggrieved by the order of punishment, the respondent preferred an appeal before the Appellate authority and the same came to be rejected. Thereafter, he raised a dispute and the same came to be referred to the Industrial Tribunal, Bengaluru for adjudication in I.D.No.16/2012. The Industrial Tribunal vide award dated:02.01.2020 set-aside the order of punishment and also ordered that the respondent is entitled for the reliefs arising out of setting aside the punishment order. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.
3. Learned counsel for the respective parties urged
several contentions. Sri.B.L.Sanjeev., learned counsel appearing on behalf of the Corporation in presenting his arguments strenuously urged that there is an inordinate delay of almost seventeen years in raising the dispute. He relied upon the decision of the Hon'ble -4- Apex Court in PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in
(2015) 15 SCC 1 to contend that the Hon'ble Apex Court has
settled the law regarding delay and laches. Learned counsel submitted that he is not urging any contentions on the merits of the case and requested the Court to give finding only on delay and laches. By way of reply to this contention, learned counsel for the respondent justified the award of the Industrial Tribunal. He submits that the Writ Petition is devoid of merits and the same may be dismissed. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers and the records with utmost care.
4. The following points would arise for consideration:
1. Whether the Industrial Tribunal is justified in concluding that there is no delay and the dispute is not stale?
2. Whether the award of the Tribunal require interference by this Court? -5-
5. The facts are sufficiently stated and do not require
reiteration. Suffice it to note that, the respondent came under a disciplinary inquiry for an act of misconduct and was visited with an order of punishment back in the year 1995 i.e., on 23.05.1995. Strangely, he raised the dispute after a lapse of almost seventeen years. The Corporation filed objections and sought for dismissal of the reference on the grounds of delay and laches. The respondent contended that he had preferred an appeal before the Appellate Authority and the Authority did not dispose of the appeal, therefore, the Tribunal held that there is no delay and the dispute is not stale. This is incorrect. The reason is apparent. There is nothing on record to show that the respondent had preferred an appeal and the same was pending consideration before the Appellate Authority as of the date of the adjudication of the dispute. Furthermore, the reasons accorded to condone the delay are contrary to the law laid down by the Apex Court in PRABHAKAR's case. It is pivotal to note that the Apex Court in PRABHAKAR V/S. JOINT DIRECTOR, SERICULTURE DEPARTMENT, AND ANOTHER reported in (2015) 15 SCC page 1 has laid down -6- the law about delay and laches. In paragraphs 42.1 to 42.6 and 44, the Apex Court has held as under:
"42.1. An industrial dispute has to be referred by the appropriate Government for adjudication and the workman cannot approach the Labour Court or Industrial Tribunal directly, except in those cases which are covered by Section 2-A of the Act. Reference is made under Section 10 of the Act in those cases where the appropriate Government forms an opinion that “any industrial dispute exists or is apprehended”. The words “industrial dispute exists” are of paramount importance, unless there is an existence of an industrial dispute (or the dispute is apprehended or it is apprehended such a dispute may arise in the near future), no reference is to be made. Thus, existence or apprehension of an industrial dispute is a sine qua non for making the reference. No doubt, at the time of taking a decision whether a reference is to be made or not, the appropriate Government is not to go into the merits of the dispute. Making of reference is only an administrative function. At the same time, on the basis of material on record, satisfaction of the existence of the industrial dispute or the apprehension of an industrial dispute is necessary. Such existence/apprehension of industrial dispute, thus, becomes a condition precedent, though it will be only subjective satisfaction based on material on record. Since, we are not concerned with the satisfaction dealing with cases where there is apprehended industrial dispute, discussion that follows would confine to existence of an industrial dispute. -7-
42.2. Dispute or difference arises when one party
makes a demand and the other party rejects the same. It is held by this Court in a number of cases that before raising the industrial dispute making of demand is a necessary precondition. In such a scenario, if the services of a workman are terminated and he does not make the demand and/or raise the issue alleging wrongful termination immediately thereafter or within reasonable time and raises the same after considerable lapse of period, whether it can be said that industrial dispute still exists.
42.3. Since there is no period of limitation, it
gives right to the workman to raise the dispute even belatedly. However, if the dispute is raised after a long period, it has to be seen as to whether such a dispute still exists? Thus, notwithstanding the fact that law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti. For this purpose, he has to demonstrate that even if considerable period has lapsed and there are laches and delays, such delay has not resulted into making the industrial dispute cease to exist. Therefore, if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no application. On the other hand, if because of such delay dispute no longer remains alive and is to be treated as “dead”, then it would be non-existent dispute which cannot be referred.
-8- 42.4. Take, for example, a case where the
workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive
response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection. 42.5. Take another example. A workman
approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive
-9- as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum. 42.6. In contrast, in those cases where there was
no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute." In such circumstances, the appropriate Government can refuse to refer. In the alternative, the Labour Court/ Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.
44. To summarize, although there is no
limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed in as much as unless there is a satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry."
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6. Reverting to the facts of the case, the punishment
order was passed on 23.05.1995. However, the respondent
chose to challenge the order of punishment after a lapse of almost seventeen years. There is an inordinate delay in raising the dispute. The dispute had become stale as of the date of the adjudication. The Industrial Tribunal has overlooked this aspect of the matter and erroneously proceeded and condoned the delay. The Tribunal ought to have rejected the dispute on the grounds of delay and laches. In any view of the matter, the award of the Industrial Tribunal cannot be sustained. The Award of the Industrial Tribunal is otherwise erroneous and unjust. Since the dispute is rejected on the grounds of delay and laches, there is nothing to discuss on the merits of the case as requested by the counsel for the petitioner.
7. The Writ of Certiorari is ordered. The award dated:02.01.2020 passed by the Industrial Tribunal, Bangalore in I.D.No.16/2012 vide Annexure-C is quashed. The order of punishment is confirmed.
8. Resultantly, the Writ Petition is allowed. - 11 - Because of the disposal of the Writ Petition, the interim
order granted by this Court, if any stands discharged and the
pending interlocutory applications, if any are disposed of. Sd/- (JYOTI MULIMANI) JUDGE MRP/TKN List No.: 1 Sl No.: 22