Sri John D Souza vs The Divisional Controller
2022 Latest Caselaw 11523 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF AUGUST, 2022

                          PRESENT

              THE HON'BLE MR. ALOK ARADHE
                  ACTING CHIEF JUSTICE

                               AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                W.A.No.222/2022(L-KSRTC)

BETWEEN:

SRI JOHN D SOUZA
S/O LATE LOUIS D SOUZA
AGED ABOUT 69 YEARS
(SENIOR CITIZEN)
R/AT # 53, DODDABELE LAYOUT
KENGERI, BENGALURU - 560 060.              ...APPELLANT

(BY SRI JOHN D SOUZA, PARTY-IN-PERSON)

AND:

THE DIVISIONAL CONTROLLER
KSRTC, BENGALURU
CENTRAL DIVISION
SHANTHINAGAR
BENGALURU - 560 027.                     ...RESPONDENT

(BY SRI S.B. SRIKANTH, ADV.)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.15193/2021 DATED 07.01.2022 AND CONSEQUENTLY
ALLOW THE W.P.NO.15193/2021 AND GRANT ALL THE RELIEFS AS
PRAYED IN THE WRIT PETITION.
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     THIS APPEAL HAVING BEEN HEARD AND RESEVED, COMING
ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH SHETTY J.,
DELIVERED THE FOLLOWING:

                             JUDGMENT

This intra court appeal is filed by the unsuccessful

petitioner challenging the order dated 07.01.2022 passed by

the learned Single Judge of this Court in W.P.No.15193/2021.

2. Heard the appellant - party-in-person, learned

Counsel appearing for the respondent and also perused the

material available on record in detail.

3. Brief facts of the case as revealed from the

records which would be germane for the purpose of decision

of this appeal are, the appellant-workman joined the

respondent-Corporation as a bus conductor on 28.11.1984.

He was the General Secretary of the KSRTC & BMTC United

Employees Union. The appellant reportedly remained absent

from duty for the period from 18.08.2005 till 29.10.2005

without prior permission of the superiors or getting the leave

sanctioned. On the basis of the report submitted by the Depot

Manager in this regard, a notice was issued to him on

05.09.2005 to resume to the duty. Thereafter, he was served

with the article of charges on 23.06.2006, for which, he did

not submit his reply. A retired client law officer of the

respondent-Corporation was thereafter appointed as the

Enquiry Officer and the appellant had participated in the

enquiry proceedings. After the completion of the evidence of

the Corporation, though the appellant was given sufficient

opportunity to lead evidence and also produce document in

support of his case, he had failed to lead evidence or to

produce any documents in support of his defence, and

therefore, eventually the Enquiry was closed and a report was

submitted by the Enquiry Officer holding that the charges

against the appellant-workman were proved. Thereafter, a

show cause notice dated 21.08.2010 along with the enquiry

findings was served upon the appellant, to which, he

submitted the reply. The Disciplinary Authority, being not

satisfied with the said reply, passed an order of dismissal

from service on 11.10.2010, wherein the past history of the

appellant was also referred to.

4. Since an industrial dispute in Reference

No.243/2006 was pending before the I Addl. Labour Court,

Bengaluru, between the appellant and the respondent-

Corporation as on the date of order of dismissal from service

was passed, the respondent-Corporation filed an application

under Section 33(2)(b) of the Industrial Disputes Act, 1947

(for short, 'the Act'), seeking permission of the Labour Court

to effectuate the order of dismissal. The Labour Court had

formulated the following four issues for its consideration.

1. Whether domestic enquiry against first party is fair and proper?

2. Whether the Enquiry Officer is justified in holding that charges are proved?

3. Whether the Disciplinary Authority is justified in dismissing the first party?

4. To what award of order the parties entitled?

5. Thereafter, evidence was adduced on Issue no.1

and the Labour Court vide its order dated 16.03.2012

answered Issue no.1 in the affirmative and held that the

domestic enquiry was conducted in a fair and proper manner.

The said order was unsuccessfully challenged by the appellant

before the High Court and the when the matter was pending

before the Supreme Court in SLP(C).Nos.34485-86/2013, the

Labour Court had passed its final order/award on 06.11.2013

deciding Issue nos.2 to 4 in favour of the appellant, and

therefore, the SLP which was pending before the Supreme

Court was dismissed as infructuous.

6. The respondent-Corporation had challenged the

order dated 06.11.2013 passed by the Labour Court before

this Court and the learned Single Judge had dismissed the

writ petition on 21.11.2014 and the respondent-Corporation

had filed W.A.No.30/2015 challenging the said order passed

by the learned Single Judge. The writ appeal in

W.A.No.30/2015 was allowed by the Division Bench of this

Court vide its order dated 14.07.2016 on the ground that the

Labour Court while exercising its jurisdiction under Section

33(2)(b) of the Act could not have permitted the parties to

adduce evidence as the scope of enquiry under Section

33(2)(b) of the Act was very limited, and accordingly, the

matter was remitted back to the Labour Court for re-

consideration.

7. The Labour Court, thereafter, once again

reiterated its earlier order and passed an award dated

28.10.2016 dismissing the application of the respondent-

Corporation filed under Section 33(2)(b) of the Act. As

against the said order, the Corporation had filed the writ

petition which was dismissed by the learned Single Judge on

20.09.2017 and the said order was questioned by the

respondent in W.A.No.6609/2017 which was allowed and the

matter was once again remitted to the Labour Court. The

Division Bench while setting aside the order passed by the

Labour Court as well as of the learned Single Judge, had

observed as under:

"...... From close scrutiny of the order passed by the Labour Court particularly paragraphs 25 to 45, it is evident that the findings by the Labour Court with regard to perversity of the findings recorded by the Enquiry Officer and victimization is based on additional material on record, which did not form a part of the enquiry proceeding. The Labour Court, while passing the impugned order has not only traveled beyond the order of remand, but has acted like an Appellate Authority.

The learned Single Judge has failed to appreciate that the respondent only cross- examined the witnesses of appellant in the

departmental enquiry and did not adduce any evidence. The respondent for the first time before the Labour Court produced the documents viz., Exs.R1 to R104, which, have been considered by the Labour Court. The learned Single Judge has also failed to appreciate that the Labour Court was required to decide the application under Section 33(2)(b) of the Act in the light of observations made by the Division Bench of this Court in order dated 14.07.2016 passed in W.A.No.30/2015, which had attained finality and was binding on the Labour Court. The learned Single Judge has also not appreciated that the finding with regard to victimization of respondent is based on additional material, which was not part of the enquiry conducted against the respondent."

8. As against the said order passed by the Division

Bench of this Court in W.A.No.6609/2017, the appellant had

approached the Hon'ble Supreme Court in C.A.No.8042/2019

and the Hon'ble Supreme Court having appreciated the entire

facts of the case and also the jurisdiction exercisable by the

Labour Court or Tribunal under Section 33(2)(b) of the Act,

after referring to various relevant provisions of the Act, had

partly allowed the civil appeal on 16.10.2019 and the

judgment dated 30.11.2018 of the Division Bench was

modified and the matter was remitted to the Labour Court

with certain observations. Thereafter, the Labour Court vide

its order dated 26.03.2021 allowed the application filed by

the respondent-Corporation under Section 33(2)(b) of the Act

and approved the order of dismissal passed by the

Disciplinary Authority dated 11.10.2010. Aggrieved by the

same, the appellant had filed W.P.No.15193/2021 which has

been dismissed by the learned Single Judge vide the order

impugned. It is under these circumstances, the appellant is

before this Court.

9. Appellant - party-in-person has made elaborate

arguments in support of his case. He has contended that he

had submitted letter seeking leave and had sought leave from

his higher officials, but the same was not considered by them

and he has not received any communication from them. It is

further contended that the Corporation has created document

to show that his leave application as rejected. He has also

strenuously contended that the records relating to his leave

application and rejection of the same has been suppressed by

the Corporation. He has submitted that the Corporation has

victimized him for being involved in union activities, and also

considering the various earlier litigations, he has submitted

that the Labour Court and the learned Single Judge have

failed to consider that the enquiry report is not based on any

documentary evidence. He submits that the Labour Court as

well as the learned Single Judge have passed orders against

him on speculative facts and not based on documentary

evidence. He also submits that he is not a history-sheeter and

during his career of 20 years from 1985 to 2005, he had

never indulged in any case of unauthorized absence. He

submitted that the Hon'ble Supreme Court while remanding

the matter has not restricted the Labour Court from

examining the findings of the Enquiry Officer and inspite of

the same, the Labour Court has refused to re-appreciate the

evidence on record. He also submits that though the Hon'ble

Supreme Court had observed for exploring the possibilities of

settlement, no efforts have been made for settlement inspite

of there being a specific order to the said effect by the

Hon'ble Supreme Court. The appellant has also submitted

that since he has attained the age of superannuation long

back, there is no use in he challenging the order of dismissal

passed against him in accordance with law.

10. Per contra, learned Counsel appearing for the

respondent-Corporation submits that the Hon'ble Supreme

Court has passed a detailed order while remitting the matter

to the Labour Court after examining the scope of the Labour

Court while considering the application under Section

33(2)(b) of the Act. He submits that the dismissal order

passed by the Disciplinary Authority has not been questioned

by the appellant and in an application filed under Section

33(2)(b) of the Act, the jurisdiction of the Labour Court is

very limited. He submits that though the appellant has been

contending that the respondent has suppressed documentary

evidence and he does not have any past history, he has not

challenged the order of dismissal passed against him. He

submits that the appellant was dismissed from service on two

occasions earlier and the said orders were subsequently set

aside. He also submits that in addition to the same, there

were nearly 28 other charge sheets filed against the

appellant, in which enquiries were pending. The Disciplinary

Authority having taken all these aspects into consideration,

has rightly dismissed the appellant from service and the

Labour Court having appreciated this aspect of the matter,

has approved the said order. He, therefore, submits that the

appeal is devoid of merits and is liable to be dismissed.

11. We have given our anxious consideration to the

arguments addressed on both sides and also perused the

material on record.

12. The Disciplinary Authority had passed the order of

dismissal from service against the appellant on the allegation

that he had unauthorizedly absented himself for a period of

73 days based on the Enquiry Report submitted by the

Enquiry Officer. Undisputedly, the appellant had not led any

evidence before the Enquiry Officer nor had he produced any

document in support of his case though he was granted

sufficient opportunity before the Enquiry Officer.

13. Since a dispute in Reference No.243/2006

between the appellant and the respondent was pending

consideration before the I Addl. Labour Court, Bengaluru, the

respondent-Corporation had filed an application under Section

33(2)(b) of the Act for approval of the order of dismissal

passed by it against the appellant, during the pendency of the

reference case. The Labour Court had answered Issue no.1

framed by it in the affirmative and had held that the domestic

enquiry was held by the respondent-Corporation in a fair and

proper manner and the said finding recorded by the Labour

Court has attained finality.

14. Undisputedly, the appellant has not questioned

the order of dismissal passed against him by the respondent

invoking Section 10(1)(c) or (d) of the Act. The jurisdiction of

the Labour Court while considering the application under

Section 33(2)(b) of the Act is very limited. The case of the

appellant was considered in detail by the Hon'ble Supreme

Court in C.A.No.804/2019 and after referring to the relevant

provisions of law and after considering the various earlier

judgments applicable to the facts of this case, remitted the

matter to the Labour Court with certain observations. The

Hon'ble Supreme Court in the earlier round of litigation while

disposing of Civil Appeal No.8042/2019, in paragraphs 22 to

25 had observed as under:

"22. The Legislature has, thus, provided a self-contained mechanism through Section 10 read with Sections 11(3) and 11A of the Act, for adjudication of an `industrial dispute' stemming out of an order of discharge or dismissal of a workman. Having done so, it can be safely inferred that neither the Legislature intended nor was there any legal necessity to set-up a parallel remedy under the same Statute for adjudication of the same `industrial dispute' by the same 15 Forum of Labour Court or Tribunal via Section 33(2)(b) of the Act. To say it differently, Section 33(2)(b) has been inserted for a purpose other than that for which Section 10(1)(c) and (d) have been enacted. Section 33(2)(b), thus, is neither meant for nor does it engender an overlapping procedure to adjudicate the legality, propriety, justifiability or otherwise sustainability of a punitive action taken against a workman.

23. Having held so, it should not take long to trace out the legislative object behind incorporation of Section 33, including sub-section (2) thereof. The caption of Section 33 itself sufficiently hints out that the primary object behind this provision is to prevent adverse

alteration in the conditions of service of a workman when `conciliation' or any other proceedings in respect of an `industrial dispute' to which such workman is also concerned, are pending before a Conciliation Officer, Board, Arbitrator, Labour Court or Tribunal. The Legislature, through Section 33(1)(a) and (b) has purposefully prevented the discharge, dismissal or any other punitive action against the workman concerned during pendency of proceedings before the Arbitrator, Labour Court or a Tribunal, even on the basis of proven misconduct, save 16 with the express permission or approval of the Authority before which the proceedings is pending. Sub-section (2) of Section 33 draws its colour from sub-Section(1) and has to be read in conjunction thereto. Sub-section (2), in fact, dilutes the rigours of sub-section (1) to the extent that it enables an employer to discharge, dismiss or otherwise punish a workman for a proved misconduct not connected with the pending dispute; in accordance with Standing Orders applicable to the workman or in absence thereof, as per the terms of contract; provided that such workman has been paid one month wages while passing such order and before moving application before the Authority concerned `for approval of the action'. In other

words, the Authority concerned (Board, Labour Court or Tribunal, etc.) has to satisfy itself while considering the employer's application that the `misconduct' on the basis of which punitive action has been taken is not the matter sub- judice before it and that the action has been taken in accordance with the standing orders in force or as per terms of the contract. The laudable object behind such preventive measures is to ensure that when some proceedings emanating from the 17 subjects enlisted in Second or Third Schedule of the Act are pending adjudication, the employer should not act with vengeance in a manner which may trigger the situation and lead to further industrial unrest.

24. Section 33(2)(b) of the Act, thus, in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workmen and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. As a natural corollary thereto, the Labour Court or the Forum concerned will lift the veil to find out that there is no hidden motive to punish the workman or an

abortive attempt to punish him for a nonexistent misconduct.

25. The Labour Court/Tribunal, nevertheless, while holding enquiry under Section 33(2)(b), would remember that such like summary proceedings are not akin and at par with its jurisdiction to adjudicate an `industrial dispute' under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to peep into the quantum of 18 punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an `industrial dispute' referrable for adjudication under Section 10(1)(c) or (d), as the case may be. It needs pertinent mention that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal."

15. Though the Hon'ble Supreme Court had observed

that the approval accorded by the Labour Court under Section

33(2)(b) of the Act would have no binding effect to the

proceedings that may be initiated by the workman under

Section 10(1)(c) or (d) of the Act challenging the order

passed by the Disciplinary Authority which is required to be

decided independently by the Labour Court after appreciating

the material evidence adduced by the parties before it, the

appellant has not chosen to challenge the order of dismissal

passed by the Disciplinary Authority. The appellant who has a

grievance against the order of dismissal passed against him

by the Disciplinary Authority was required to challenge the

same in the manner known to law and though the Hon'ble

Supreme has observed in its order passed in

C.A.No.8042/2019 that any such proceedings initiated by the

workman is required to be considered independently by the

Labour Court notwithstanding the order of approval passed by

it under Section 33(2)(b) of the Act, the appellant has

submitted before this Court that he does not intend to

challenge the said order and there is no use in challenging

the said order, as he has already attained the age of

superannuation long back.

16. The Hon'ble Supreme Court has further held that

the Labour Court while exercising its jurisdiction under

Section 33(2)(b) of the Act cannot invoke the adjudicatory

powers vested in it under Section 10(1)(c) & (d) of the Act.

In paragraphs 38 & 39 of its judgment, the Hon'ble Supreme

Court has observed as under:

"38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act.

39. Consequently, the Labour Court shall in the instant case re-visit the matter afresh within the limit and scope of Section 33(2)(b), as explained above and keeping in mind that the exercise in hand is not adjudication of an

`industrial dispute' under Section 10(1)(c) or

(d) read with Section 11A of the Act. However, if the Labour Court finds that the domestic inquiry held against the appellant is suffering from one of the incurable defects as illustrated by this Court in Mysore Steel Works Pvt. Ltd. or Lalla Ram's cases, then it may look into the evidence adduced by the parties for the purpose of formation of its prima facie opinion."

17. It is under these circumstances, that on remand,

the Labour Court has re-appreciated the case of the appellant

in the background of the orders passed by the Hon'ble

Supreme Court in C.A.No.8042/2019 and also taking into

consideration the law laid down in the case of MYSORE STEEL

WORKS PRIVATE LIMITED VS JITENDRA CHANDRA KAR &

ANOTHER - (1971)1 LLJ 543.

18. The Labour Court has discussed the evidence

adduced on behalf of the Corporation before the Enquiry

Officer and having analyzed the same, has arrived at the

conclusion that the evidence on record discloses that the

appellant had not satisfactorily established that his

application for leave was refused orally, and therefore, it was

held that the appellant had absented himself without availing

any leave. The Disciplinary Authority while considering the

report submitted by the Enquiry Officer had also taken into

consideration the past history of the appellant which would go

to show that on two occasions he was dismissed from service

earlier, and had accordingly passed an order of dismissal

against the appellant on 11.10.2010. The appellant, who has

failed to adduce any evidence and produce any document

before the Enquiry Officer, has made a feeble attempt before

the Labour Court to lead evidence in support of his case.

Since the Labour Court had already recorded a finding on

Issue no.1 in the affirmative, in view of the law laid down by

the Hon'ble Supreme Court in the case of Mysore Steel Works

Private Limited's case supra, it is not open to the Labour

Court to look into the evidence adduced by the parties before

it in a proceedings on an application filed under Section

33(2)(b) of the Act. The learned Single Judge having

appreciated this aspect of the matter in detail, has held that

the Labour Court was fully justified in according approval to

the order of dismissal passed by the Disciplinary Authority on

11.10.2010. We find no illegality or irregularity in the said

order passed by the learned Single Judge.

19. In so far as the contention of the appellant

regarding amicable settlement of the dispute between the

parties is concerned, the material on record would go to show

that pursuant to the orders of the Hon'ble Supreme Court,

the parties had appeared before the Mediation Centre and

inspite of best efforts, the parties were not able to arrive at a

settlement, and accordingly, a report was forwarded by the

Mediation Centre and it is thereafter, the Labour Court has

passed the final order according approval to the order of

dismissal passed by the Disciplinary Authority. Even before

the learned Single Judge, efforts were made for amicable

settlement of the matter and the learned Single Judge in his

order, has observed that the gap between the two parties

was too wide and all efforts for amicable settlement of the

dispute went kaput. Therefore, we find no substance in the

contention of the appellant that no efforts were made for

amicable settlement of the dispute inspite of there being a

specific order to the said effect by the Hon'ble Supreme

Court.

20. Under the circumstances, we find no merit in this

writ appeal and accordingly, we decline to entertain the

same. Writ appeal is, therefore, dismissed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

KK