Bangalore Metropolitan ... vs B.K.Samangi
2022 Latest Caselaw 12303 Kant

                             1
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF OCTOBER, 2022

                          PRESENT

             THE HON'BLE MR. ALOK ARADHE
                 ACTING CHIEF JUSTICE

                            AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

        WRIT APPEAL NO.3064/2018(L-KSRTC)

BETWEEN:

BANGALORE METROPOLITAN
TRANSPORT CORPORATION
BMTC VOVLO DIVISION
BANGALORE BY ITS
DIVISIONAL CONTROLLER
REPRESENTED BY ITS
CHIEF LAW OFFICER
B.M.T.C. CENTRAL OFFICE
K.H.ROAD, SHANTHINAGAR
BANGALORE - 560 027.                  ...APPELLANT

(BY SMT.RENUKA H.R, ADV.)

AND:

B.K. SAMANGI
S/O BISANAHALLI KAVERAPPA
AGED ABOUT 53 YEARS
NO.71, BALAGERE VILLAGE
PANATHUR POST, VARTHUR
HOBLI, BANGALORE - 560 087.           ...RESPONDENT

(BY SRI V.S. NAIK,ADV.)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 14/9/2018 IN
WP 31337/2018 AND ALLOW THE WRIT PETITION.
                          2
     THIS APPEAL COMING ON FOR FURTHER HEAING THIS
DAY, VISHWAJITH SHETTY J.,         DELIVERED THE
FOLLOWING:

                    JUDGMENT

This intra court appeal is filed challenging the order

dated 14.09.2018 passed by the learned Single Judge of

this Court in W.P.No.31337/2018.

2. Heard the learned counsel appearing for the

parties and also perused the material available on record.

3. Brief facts leading to filing of this appeal as

revealed from the records are, the respondent-workman

who was working as a Driver with the appellant-

Corporation had remained unauthorizedly absent without

submitting any leave application for a period from

01.05.2009 onwards till 23.02.2012, the date on which

dismissal order was passed by the Disciplinary Authority

accepting the findings of the Enquiry Officer. Thereafter,

the appellant had paid a sum of Rs.16,016/- vide a

cheque to the respondent towards one month salary and

also filed an application under Section 33(2)(b) of the

Industrial Disputes Act, 1947 ( hereinafter referred to as

'the Act of 1947' for short) in I.D.No.148/2005 which was

filed by the Union for grant of charter of demands. The

application filed by the appellant-Corporation under

Section 33(2)(b) of the Act of 1947 was numbered as

SLA No.227/2012. The Industrial Tribunal had framed a

issue regarding validity of the domestic enquiry and vide

order dated 02.01.2016 had held that enquiry was held

against the respondent in fair and proper manner.

Thereafter, the application filed under Section 33(2)(b) of

the Act of 1947 for approval was considered by the

Industrial Tribunal (hereinafter referred to as 'the

Tribunal' for short) and vide order dated 07.05.2018, the

said application was dismissed on the ground that the

dismissal of the workman from service was victimization

and the employer had adopted unfair labour practice.

Being aggrieved by the said order, the appellant herein

had filed W.P.No.31337/2018 before this Court which

was dismissed by the learned Single Judge at the stage

of admission itself. The said order passed by the learned

Single Judge is assailed in this intra court appeal.

4. The learned counsel for the appellant submits

that learned Single Judge has erred in dismissing the writ

petition and also has failed to assign proper reason to

confirm the order passed by the Tribunal. She submits

that admittedly respondent was unauthorizedly absent

from the service for a period of 959 days continuously

and he has pleaded guilty before the Enquiry Officer in

this regard and it is under these circumstances, an order

of dismissal was passed against him and there is no

victimization and unfair labour practice has held by the

Tribunal and this aspect has not been appreciated by the

learned Single Judge. She submits that the judgment of

Hon'ble Supreme Court in the case of Krushnakant

B.Parmar v. Union of India and Another1 is held to be

per incuriam in the case of Chennai Metropolitan

Water Supply & Sewerage Board v. T.T.Murali

Babu2.

5. Per contra, learned counsel for the

respondent submits that at the time of considering

application under Section 33(2)(b) of the Act, 1947 for

approval, the Tribunal had jurisdiction to consider

whether there was any element of victimization or unfair

(2012) 3 SCC 178

(2014) 4 SCC 108

labour practice involved while passing the order of

dismissal against the workman. In support of his

contention, he relies upon the judgment of Hon'ble

Supreme Court in the case of John D'Souza v.

Karnataka State Road Transport Corporation

reported in Civil Appeal No.8042 of 2019, Mysore

Steel Work Pvt. Ltd. v. Jitendra Chandra Kar and

Others3. He submits that the workman had valid reason

for absenting himself from service on medical grounds

and the Industrial Tribunal appreciating the same had

rightly come to a conclusion that an element of

victimization as well as unfair labour practice was found

in the order of dismissal passed by the Disciplinary

Authority. He submits that having regard to the medical

condition of the respondent he had sought for change of

cadre but the same was not considered by the appellant.

He submits that order of granting approval cannot be

mechanical and in view of the law laid down by the

Hon'ble Supreme Court in the case of Workmen v. M/s

Williamson Magor & Co. Ltd., and Another4, the

(1971) 1 ILJ 543

(1982) 1 SCC 117

learned Single Judge was justified in dismissing the writ

petition. He accordingly, prays to dismiss the writ appeal.

6. The scope of enquiry by the Tribunal before

whom an application under Section 33(2)(b) of the Act,

1947 is filed is well settled and if the Tribunal comes to a

conclusion that enquiry held against the workman was

just and proper it has to only see if there was any prima

facie element of victimization and unfair labour practice

in passing an order of dismissal. In the present case, the

Tribunal has answered the issue regarding the validity of

the Departmental Enquiry and has held that the enquiry

was held in a fair and proper manner. The law in this

regard is laid down by the Hon'ble Supreme Court in the

cases of Mysore Steel Work Pvt. Ltd. and John

D'Souza (supra) and we are in respectful agreement

with the same.

7. The Tribunal after appreciating the evidence

on record placing reliance in the judgment of Hon'ble

Supreme Court in the case of Krushnakant B.Parmar

(supra) had arrived at a conclusion that an element of

victimization and unfair labour practice was involved in

the case while passing the order of dismissal from service

against the workman. The Hon'ble Supreme Court in the

case of Chennai Metropolitan Water Supply &

Sewerage Board (supra) at paragraph No.23 has

observed as follows:

"23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, Industrial Tribunal has been stated therein that Industrial Tribunal is obligatory on the apart of the disciplinary authority to come to a conclusion the absences is willful. On an apposite understanding of the judgment Krushnakant B. Parmar case we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as on absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent."

8. Therefore, the question that would arise for

consideration in the present case is, "whether the

workman had willfully remained unauthorizedly absent

without there being sufficient cause". The material on

record would go to show that the respondent-workman

had remained unauthorizedly absent continuously for a

period of 959 days i.e. from 01.05.2009 till 23.02.2012.

It is not in dispute that the respondent-workman had not

sought any leave by filing necessary application before

the competent authority during the aforesaid period. The

respondent-workman during the course of enquiry had

admitted that he had remained absent for the aforesaid

period and he has not offered any explanation before the

enquiry officer or before the Disciplinary Authority for his

unauthorized absence for a long period of 959 days. The

Tribunal placing reliance on the judgment of the Hon'ble

Supreme Court in the Krushnakant B.Parmar (supra)

had held that even if the employee failed to show cause

for his unauthorized absence for a long period, the

Disciplinary Authority was required to record a finding

that absence was willful. The Hon'ble Supreme Court in

the case of Chennai Metropolitan Water Supply &

Sewerage Board (supra) has held that opinion

expressed in Krushnakant B.Parmar (supra) case has

to be restricted to the facts of the said case and it cannot

be absolute proposition in law that whenever there is

long unauthorized absence, it is obligatory on part of the

Disciplinary Authority to record finding that the said

absence is willful, even if the employee fails to show

cause to remain absent. In the present case, the

respondent has admitted his unauthorized absence for a

period of 959 days and he has failed to show that he had

any compelling circumstances to remain absent.

9. Ex.O2 is letter dated 05.09.2008 wherein a

request was made for providing light duty to workman

and considering the same, vide letter dated 02.02.2009 -

Ex.O3, light duty was provided to the workman for a

period of three months. Thereafter, from 01.05.2009

onwards workman had remained continuously absent till

an order of dismissal was passed against him. After the

enquiry was initiated against him, he had submitted a

representation on 09.03.2011 seeking light duty and in

reply to the same, endorsement dated 01.04.2011 was

issued by the employer stating that for the purpose

examining his request he was required to report to duty.

However, the workmen did not respond to the said

endorsement and throughout remained absent till the

order of dismissal was passed against him.

10. The respondent has failed to produce any

medical record either before the Enquiry Officer or before

the Tribunal so as to establish that he was suffering from

a disability of not less than 40% in terms of Rights of

Persons with Disabilities Act, 2016 to consider his case

either for providing a lighter work or for change of cadre.

The respondent-workman had remained unauthorizedly

absent for a period of 959 days and undisputedly during

the aforesaid period he had not sought leave from the

employer, based on his medical condition. Only after an

enquiry was initiated against him with regard to him

misconduct of unauthorized absents, he had filed

representation to provide lighter work and to change the

cadre. The Tribunal without appreciating this aspect of

the matter placing reliance on the judgment of Hon'ble

Supreme Court in the case of Krushnakant B.Parmar

(supra) had arrived at a conclusion that there was an

element of victimization and unfair labour practice while

passing the order of dismissal from service against the

workman. In our considered view since the respondent-

workman had admitted to his guilt of unauthorized

absence and since he had failed to show any compelling

circumstances for his unauthorized absence for a long

period of 959 days and in view of law laid down by the

Hon'ble Supreme Court in the case of Chennai

Metropolitan Water Supply & Sewerage Board

(supra), the Industrial Tribunal was not justified in

rejecting the application filed by the appellant seeking its

approval under Section 32(2)(b) of the Act of 1947.

11. The grant of approval by the Industrial

Tribunal will not preclude the workman from challenging

the order of dismissal passed against him in the manner

known to law, if he has any grievance against the same.

The learned Single Judge has failed to appreciate this

aspect of the matter and has erred in dismissing the writ

petition at the stage of admission itself. Under the

circumstances, we are of the considered view that the

impugned order passed by the learned Single Judge and

the order passed by the Industrial Tribunal cannot be

sustained. Accordingly, writ appeal is allowed. The order

dated 14.09.2018 passed by the learned Single Judge in

writ petition No.31337/2018 and the order dated

23.02.2012 passed by the Industrial Tribunal in ID

No.148/2005 are quashed and consequently, the

application filed by the appellant under Section 33(2)(b)

of the Act of 1947 before the Industrial Tribunal seeking

approval stands allowed.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

NMS