John D Souza vs The Divisional Controller
2022 Latest Caselaw 262 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7TH DAY OF JANUARY 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE R. DEVDAS

       WRIT PETITION NO.15193/2021 (L-KSRTC)

BETWEEN:

John D'Souza
S/o Late Louis D'Souza
Aged about 68 Years (Senior Citizen)
No.Q-56, 5th Main Road
Tulasinilaya, 1st Cross
Maruthi Extn., Bangalore-560 021

Present Address
R/at No.53, Doddabele Layout
Kengeri
Bangalore-560 060
                                                  ... Petitioner
(Party-in-person)

AND:
The Divisional Controller
KSRTC, Bangalore Central
Division, Shanthi Nagar
Bangalore-560 027
                                                ... Respondent
(By Smt. H.R. Renuka, Advocate)

       This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ, order or
direction in the nature of writ of certiorari quashing the
order dated 26.03.2021 passed by the I Addl. Labour Court
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at Bangalore in SL.A.No.1/2010 produced vide Annexure-A
along with this writ petition and etc.

      This petition having been heard and reserved on
02.12.2021, coming on for pronouncement of order, this day,
R. Devdas J., made the following:

                         ORDER

This case was taken up for reconsideration, as per

the directions issued by the Hon'ble Supreme Court in

Civil Appeal No.8042/2019 dated 16.10.2019. The

petitioner herein had challenged the judgment and

order dated 30.11.2018 passed by the Division Bench of

this Court in W.A.No.30/2015.

2. A dispute in Reference No.243/2006 was

pending consideration before the Presiding Officer, I

Addl. Labour Court, Bangalore between the petitioner

herein and the respondent-Corporation. The petitioner

was working as a Conductor in the respondent-

Corporation. During the pendency of the dispute, a

separate cause of action for unauthorized absence of 73

days seems to have caused issuance of Articles of

charges against the petitioner herein on 23.06.2006.

An enquiry was conducted and the Enquiry Officer

found the petitioner guilty of unauthorized absenteeism.

A second show cause notice was issued to the petitioner

and although a reply was caused by the petitioner, the

disciplinary authority, not being satisfied with the reply,

dismissed the petitioner from service, by order dated

11.10.2010. However, since an industrial dispute in

Reference No.243/2006 was pending consideration

before the Labour Court, a Serial Application No.1/2010

was filed by the respondent-Corporation before the

Labour Court, as mandated under Section 33(2)(b) of

the Industrial Disputes Act, 1947 (hereinafter referred

to as 'I.D.Act' for short).

3. A preliminary issue as to whether domestic

enquiry held against the petitioner is fair and proper

was considered and by order dated 16.03.2012, the

Labour Court held that the domestic enquiry conducted

against the petitioner was fair and proper. The

petitioner had challenged the said order dated

16.03.2012 all along to the Hon'ble Supreme Court.

However, during the pendency of the SLP, the main

application was dismissed by the Labour Court and

therefore the SLP was rendered infructuous. By order

dated 06.11.2013 the application filed under Section

33(2)(b) of the I.D. Act was dismissed. The respondent-

Corporation filed W.P.No.10271/2014, calling in

question the order of dismissal of the application. The

said writ petition was dismissed by order dated

21.11.2014. W.A.No.30/2015 was filed by the

Corporation and a Division Bench of this Court

remanded the matter back to the Labour Court for

reconsideration in the light of the observations made in

the order. The petitioner herein had filed a review

petition in R.P.No.375/2016 and the same was rejected

by order dated 02.09.2016.

4. After reconsideration, the Labour Court once

again rejected the Serial Application filed under Section

33(2)(b) of the I.D. Act, by order dated 28.10.2016. The

respondent-Corporation once again filed

W.P.No.63562/2016 and once again the writ petition

was dismissed on 20.09.2017. In W.A.No.6609/2017,

the Division Bench once again remanded the matter

back to the Labour Court, by order dated 30.11.2018,

noticing that the Labour Court could not have

considered the material not placed during domestic

enquiry, while considering an application under Section

33(2)(b) of the I.D. Act. A review petition filed by the

petitioner herein in R.P.No.454/2018 was dismissed by

the Division Bench. The petitioner approached the

Hon'ble Supreme Court in Civil Appeal No.8042/2019.

The Hon'ble Supreme Court, by order dated 16.10.2019

remanded the matter back to the Labour Court to

dispose of the Serial Application in the light of the

observations made in the order. On reconsideration, the

Labour Court passed the impugned order dated

26.03.2021 allowing the Serial Application and

approved the order of dismissal dated 11.10.2010

passed by the respondent-Corporation.

5. The petitioner party-in-person has made

elaborate arguments to contend that the impugned

order of dismissal is victimization of the petitioner and

for that very reason the application filed under Section

33(2)(b) of the I.D. Act was required to be dismissed.

On facts, it was contended that the petitioner had given

a leave letter and sought for 11 days leave. The said

leave letter should have been approved by the

competent authority. Nevertheless, if the leave was not

sanctioned, the same should have been informed to the

petitioner, no communication was made to the

petitioner regarding rejection of the leave sought.

Documents are created by the respondent-Corporation

to build up a case against the petitioner that the order

of rejection of the leave application was communicated

to the petitioner. Evidence has been concocted to show

that the petitioner refused to join duty. A report of the

Depot Manager regarding the leave application and

sanctioning of the leave has been suppressed before the

enquiry officer and the Labour Court. The enquiry

officer has not considered the material on record which

would clearly establish the fact that the petitioner has

been victimized for raising his voice against the

irregularities that were taking place in the Corporation.

Most importantly, it is submitted that in an earlier

round of litigation, wherein by order dated 07.02.2002,

the petitioner herein was dismissed from service and

when the same fell for consideration before the Hon'ble

Division Bench in W.A. No.2363/2005, while the

respondent-Corporation was directed to serve a

comprehensive charge-sheet of all the allegations made

against the petitioner and if the petitioner's explanation

thereto was not satisfactory, a retired District Judge

should be appointed as enquiry officer and the enquiry

officer shall go into all the charges and submit a report

within three months, on the basis of which the

respondent-Corporation was require to proceed in

accordance with law. It was directed that the enquiries

already held or initiated against the petitioner herein

shall not be pursued any further. It was noticed that

the petitioner was not attending to his duties for the last

more than one year and therefore he was directed to

report for duty within one week and the Corporation

agreed to give a posting to the petitioner within 50 miles

from Bangalore. It is the contention of the petitioner

that instead of complying the directions issued by the

Division Bench and conducting a fresh enquiry, by

making false imputations of unauthorized absenteeism,

the respondent-Corporation has found an easy way to

dismiss the petitioner from service. The petitioner

party-in-person seeks to place reliance on the following

decisions, in support of his contention;

1. Lalla Ram Vs. D.C.M. Chemical Works Ltd.

& Anr., (1978) 3 SCC 1.

2. Martin Burn Ltd. Vs. R.N. Banerjee, AIR 1958 SC 79.

3. Cholan Roadways Ltd. Vs. G.

Thirugnanasambandam, (2005) 3 SCC 241.

4. Central Bank of India Vs. Prakash Chand Jain, AIR 1969 SC 983.

5. Management of Tamil Nadu State Transport Corporation (Coimbatore) Limited Vs. M. Chandrasekaran, (2016) 16 SCC 16.

      6.   Sri P.A. Girish and Anr. Vs.                  The
           Management of M/s. BPL Limited                and
           Another, ILR 2009 KAR 4583.

7. Mysore Steel Works Pvt. Ltd. Vs. Jitendra Chandra Kar & Ors., (1971) 1 LLJ 543.

6. Per contra, learned counsel Smt. H.R.

Renuka, appearing for the respondent-Corporation

draws the attention of this Court to the observations of

the Hon'ble Supreme Court, while disposing of the Civil

Appeal filed by the petitioner herein. The learned

counsel submits that the Hon'ble Supreme Court has

dealt with the issue on hand elaborately and this Court

need not look into any other judgment for consideration

of this case. The learned counsel submits that the

Hon'ble Supreme Court has dealt with the width and

length of the jurisdiction exercisable by a Labour Court

or Tribunal under Section 33(2)(b) of the I.D. Act. The

learned counsel submits that all the important

decisions of the Hon'ble Supreme Court as regards

Section 33(2)(b) of the I.D. Act have been considered in

the order dated 16.10.2019 in Civil Appeal

No.8042/2019. The learned counsel has also placed

reliance on several decisions, including those that have

been cited by the petitioner party-in-person.

7. This Court has given anxious consideration

to the submission of the petitioner party-in-person,

learned counsel for the respondent-Corporation and

perused the petition papers.

8. Having gone through the order dated

16.10.2019 passed by the Hon'ble Supreme Court in

Civil Appeal No.8042/2019 filed at the hands of the

petitioner herein, this Court finds that the Hon'ble

Supreme Court has considered the issue in great detail.

Their Lordships have discussed the legislative scheme of

the Act and all relevant provisions surrounding the

provision of Section 33(2)(b) of the I.D. Act. Elaborate

discussion is made regarding the difference in the scope

and ambit of Section 33(2)(b) and Section 10(1) of the

I.D. Act. It is noticed how the composite scheme of the

statute bares out that when an industrial dispute

pertaining to discharge or dismissal of workmen

including reinstatement of or grant of relief to workmen

wrongly dismissed would be referable for adjudication to

the Labour Court in exercise of the jurisdiction vested

under Section 10(1)(c) of the I.D. Act. Most importantly,

it was held that the doctrine of proportionality is

statutorily embedded in Section 11A of the Act, which

further empowers the Labour Court, subject to its

satisfaction, to set aside the order of discharge or

dismissal and reinstate a workmen on such terms and

conditions as it thinks fit or to award a lesser

punishment in lieu thereof.

9. Their Lordships have lucidly explained the

limited scope and ambit of Section 33(2)(b), when

compared to the comprehensive provision of Section

10(1)(c) of the I.D. Act. It was therefore held that 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 Forum of Labour

Court or Tribunal via Section 33(2)(b)of the I.D. Act. To

put it in the words of the Hon'ble Supreme Court;

"To say it differently, Section 33(2)(b) has been inserted for a purpose other than that for which Section 10(1)(c) & (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."

(emphasis supplied)

10. It was further held that the primary object

behind Section 33(2)(b) 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

considered, are pending before a Conciliation Officer,

Board, Arbitrator, Labour Court or Tribunal. The

legislature, through Section 33(1)(a) & (b) has purposely

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

with the express permission or approval of the Authority

before which the proceedings is pending. It was further

held that sub-Section (2) of 33 draws its colour from

sub-Section (1) and has to be read in conjunction

thereto . Sub-section (2), in fact, dilutes the rigors of

sub-section (1) to the extent that it enables the

employer to discharge, dismiss or otherwise punish a

workman for a proven 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 the contract; provided that such

workman has been paid one month wages while passing

such order and before moving application for approval

of the action. It was therefore held that the Authority

has to satisfy itself while considering the employer's

application that the misconduct on the basis of which

the 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

the terms of the contract. The laudable object behind

such preventive measures is to ensure that when some

proceedings emanating from the 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.

11. It was further held that where the Labour

Court/ Tribunal, 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 referable for adjudication under

Section 10(1)(c) or (d), as the case may be. It was also

held that an order of approval granted under Section

33(2)(b) has no binding effect in the proceedings under

Section 10(1)(c) & (d) which shall be decided

independently while weighing the material adduced by

the parties before the Labour Court/ Tribunal. Most

importantly, in the petitioner's own case which was

decided by the Hon'ble Supreme Court, it has been held

that while holding enquiry under Section 33(2)(b) of the

I.D. Act, the Labour Court or Tribunal cannot invoke

the adjudicatory powers vested in them under Section

10(1)(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 by the Labour Court in its earlier

orders.

12. The matter was remanded back to the

Labour Court to decide the application within the limit

and scope of Section 33(2)(b) of the I.D. Act, as

explained in the order and further, the Labour Court

was required to find out whether the domestic enquiry

held against the petitioner suffers from anyone of the

incurable defects as illustrated in Mysore Steel Works

Pvt. Ltd. (supra) or Lalla Ram (supra).

13. On remand, the Labour Court has rightly

culled out the view taken in Mysore Steel Works Pvt.

Ltd. and reiterated in Lalla Ram's case, as follows;

"12. The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under Section 33(2)(b) of the 4. (1978) 3 SCC 123 Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh [ AIR 1964 SC 486: (1964) 1 SCR 709: (1963) 1 LLJ 291: 24 FJR 406], Titaghur Paper Mills Co. Ltd. V. Ram Naresh Kumar [ (1961) 1 LLJ 511:

(1960-61) 19 FJR 15], Hinid Construction & Engineering Co. Ltd. V. Their Workmen [ AIR 1965 SC 917: (1965) 2 SCR 85 :

(1965) 1 LLJ 462 : 27 FJR 232], Workmen of Messrs Firestone Tyre & Rubber

Company of India (P) Ltd. V. Management [ (1973) 1 SCC 813: 1973 SCC (L & S) 341: AIR 1973 SC 1227: (1973) 3 SCR 587] and Eastern Electric & Trading Co. v. Baldev Lal (1975) 4 SCC 684: 1975 SCC (L & S) 382: 1975 Lab IC 1435] that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of male fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment;

(iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which

would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him"

[ Emphasis supplied]

31. This Court in the above cited decisions has, in no uncertain terms, divided the scope of enquiry by the Labour Court/Tribunal while exercising jurisdiction under Section 33(2)(b) in two phases. Firstly, the Labour Court/Tribunal will consider as to whether or not a prima case for discharge or dismissal is made out on the basis of the domestic enquiry if such enquiry does not suffer from any defect, namely, it has not been held in violation of principles of natural justice and the conclusion arrived at by the employer is bona fide or that there was no unfair labour practice or victimization of the workman. This entire exercise has to be undertaken by the Labour Court/ Tribunal on examination of the record of enquiry and nothing more. In the event where no defect is detected, the approval must follow. The second stage comes when the Labour Court/Tribunal finds that the domestic enquiry suffers from one or the other legal ailment. In that case, the Labour Court/ Tribunal shall permit the parties to adduce their respective evidence and on appraisal thereof Labour Court/ Tribunal shall conclude its enquiry whether the discharge or any other

punishment including dismissal was justified. That is the precise ratio - decendi of the decisions of this Court in (i) Punjab National Bank, (ii) Mysore Steel Works Pvt. Ltd. and (iii) Lalla Ram's cases (supra).

34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be 'preponderance of probability' and not a 'proof beyond all reasonable doubts' suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act.

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."

14. Due regard having had to the parameters set

for consideration by the Hon'ble Apex Court, the Labour

Court has discussed the evidence adduced on behalf of

the respondent-Corporation and the petitioner before

the Enquiry Officer. Having analyzed the material on

record, the Labour Court has rightly come to a

conclusion that the petitioner herein has contended that

he tried to submit his leave application by hand but

same was not received in the Depot. The petitioner has

no where in his evidence disclosed as to which officer

refused to receive his leave letter. Thereafter, the

petitioner is said to have sent his leave letter through

registered post. It was clear from the records that on

18.08.2005 when the petitioner remained absent, there

was no leave application in the office. The Labour Court

has therefore come to a conclusion that the evidence on

record discloses that the petitioner has not satisfactorily

established that his leave application was refused orally

on 17.08.2005. It was therefore held that the petitioner

himself availed the leave which was not granted by the

competent authority. After elaborate discussion, the

Labour Court has come to a conclusion that the

respondent-Corporation has made out a prima facie

case for grant of approval of the dismissal order dated

11.10.2010.

15. It is also necessary to state here that during

the course of the proceedings before this Court, this

court noticed that the Hon'ble Supreme Court had

observed in its order dated 16.10.2019 that the

petitioner had attained the age of superannuation in the

year 2010 and that it had observed that there might be

some substance in the allegation that he used to

indulge in acts of indiscipline, insubordination or may

have absented himself from duties for a few days,

however, there were no allegations of financial

irregularity or embezzlement of funds. It was noticed

that earlier also this Court had directed mediation and

amicable settlement of the long drawn litigation. It was

noticed that the petitioner had submitted a proposal for

amicable settlement and demanded 75% of backwages

and whereas the Corporation was at 50%. The Hon'ble

Supreme Court had however directed that renewed

efforts should be made to amicably settle the dispute.

Therefore, this Court made an effort to bring the parties

to the table. Learned counsel for the respondent-

Corporation vehemently contended that the petitioner

had made a false submission before the Hon'ble

Supreme Court that the Corporation had agreed to

settle the dispute by granting 50% of the backwages.

Nevertheless, a fresh proposal was also put forth by the

parties, at the instance of this Court. Unfortunately,

the gap was too wide and all efforts for amicable

settlement of the dispute went kaput.

16. For the reasons stated above, this Court is of

the considered opinion that no fault could be found in

the impugned order dated 26.03.2021 passed by the

I Addl. Labour Court, Bangalore in Serial Application

No.1/2010.

17. Consequently, the writ petition stands

dismissed. No order as to costs.

Sd/-

JUDGE

BL