Karnataka High Court
North West Karnataka Road Transport ... vs Basavaraj S/O Shankarappa Revannavar on 12 December, 2023
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RSA No. 227 of 2007
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.227 OF 2007 (DEC/INJ)
BETWEEN:
NORTH WEST KARNATAKA
ROAD TRANSPORT CORPORATION,
HUBLI DIVISION, HUBLI-580 020,
BY ITS DIVISIONAL CONTROLLER,
REP. BY ITS CHIEF LAW OFFICER.
... APPELLANT
(BY SMT. VEENA HEGDE, ADVOCATE)
AND:
BASAVARAJ
S/O. SHANKARAPPA REVANNAVAR,
AGED ABOUT 54 YEARS,
NO.68, SIRUR PARK,
VIDYANAGAR, HUBLI-580 020.
Digitally
signed by ... RESPONDENT
VISHAL
VISHAL NINGAPPA (BY SRI. ANANT P.SAVADI, ADVOCATE)
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.12.15
10:31:03 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
+0530
OF CPC AGAINST THE JUDGMENT AND DECREE DATED 05.08.2006
PASSED IN R.A. NO.70/2005 ON THE FILE OF THE II-ADDL. CIVIL
JUDGE (SR.DN.), HUBBALLI ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 26.02.2005, PASSED IN
O.S. NO.206/2004 ON THE FILE OF THE I-ADDL. CIVIL JUDGE
(JR.DN.), HUBBALLI.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 227 of 2007
JUDGMENT
1. The present regular second appeal by the North
West Karnataka Road Transport Corporation ("Corporation"
for short) assailing the judgment and decree dated
05.08.2006 on the file of the II-Addl. Civil Judge (Sr.Dn.),
Hubballi, in R.A. No.70/2005, reversing the judgment and
decree dated 26.02.2005 on the file of I-Addl. Civil Judge
(Jr.Dn.), Hubballi, in O.S. No.206/2004, decreeing the suit
holding that the order dated 28.08.2001 passed by the
defendant is declared as null and void and further the
defendant is directed to restore the basic pay of the plaintiff
for the present.
2. In the present appeal, this Court while admitting
the regular second appeal on 11.08.2009 framed the
following substantial question of law:
"Whether the lower appellate Court is legally
correct in holding that the enquiry conducted by the
respondent and the penalty passed as illegal when
separate mechanism is provided under the
Regulations of the appellant - Corporation?"
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3. Learned counsel Smt.Veena Hegde appearing for
the appellant-Corporation and learned counsel Shri Anant
P.Savadi appearing for respondent have been heard on the
substantial question of law framed by this Court and the
judgment and decree of the Courts below including the
original records have been perused.
4. Brief facts of the case are that, suit for
declaration that the order dated 28.08.2001, reducing the
basic pay of the plaintiff by five incremental stages
permanently be declared as illegal, null and void and by
way of consequential relief, the plaintiff sought a direction
to the defendant to restore the basic pay of the plaintiff
reduced on account of the impugned order, dated
28.08.2001 and further direction was sought to refund the
sum of Rs.29,238/- with interest at 10% p.a. The case of
plaintiff as set up in the plaint is that, the plaintiff is
working as a conductor with the defendant and articles of
charges were framed on 13.10.1999 which was served
upon him, however, according to the plaintiff, the same is
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not in accordance with law and the charge sheet was highly
pre judged and the same is bad in law. It is the case of the
plaintiff that the said order of dismissal from service is
without affording an opportunity of defence and hearing
and in the breach of principles of natural justice.
5. The defendant-Corporation filed its written
statement pursuant to the summons issued by the trial
Court inter alia, contending that the enquiry conducted by
the Corporation was by affording sufficient opportunity to
the plaintiff before the disciplinary authority. The plaintiff
had appeared and participated in the proceedings and the
proceeding initiated by the Enquiry Officer was in
accordance with C & D Regulations of KSRTC and there is
no violation of the principles of natural justice, since after
receipt of the finding of the disciplinary authority, show
cause notice was issued to the plaintiff.
6. The trial Court on the basis of the pleadings,
framed the following issues & additional issue:
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(1) Whether the plaintiff proves that Articles of
charges dated 13.10.1999 is not in accordance
with law?
(2) Whether plaintiff proves that, the enquiry
conducted by Enquiry Officer and finding of the
Disciplinary Authority was by violating the
principles of natural justice?
(3) Whether defendant proves that, this Court has
no jurisdiction to try this suit?
(4) Whether the Court fee is sufficiently paid?
(5) Whether the suit is barred by limitation?
ADDITIONAL ISSUE
Whether the plaintiff proves that the order
passed by the Disciplinary authority on 28.08.2001 is
illegal, null and void?"
7. The Trial Court by the judgment and decree held
that:
(i) the plaintiff has failed to prove that the article
of charges dated 13.10.1999 is not in
accordance with law;
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(ii) the plaintiff has failed to prove that the
enquiry conducted by the Enquiry Officer and
the finding of the disciplinary authority was by
violating the principles of natural justice and
by the judgment and decree, dismissed the suit of the
plaintiff for declaration and consequential injunction. The
trial Court was of the opinion that the plaintiff's grievance is
against the enquiry conducted against him by the Enquiry
Officer and the Disciplinary Authority and it is not coming
within ambit of Section 2(k) of the Industrial Disputes Act,
1947, wherein, the parties had to approach the Labour
Court and held that the suit of the plaintiff is maintainable
before the Civil Court and answered issue No.3 in the
negative, holding that the defendant failed to prove that the
Civil Court had no jurisdiction to try the suit.
8. Aggrieved by the dismissal of the suit, the
plaintiff preferred appeal before the first appellate Court,
the First Appellate Court, reversed the finding of the Trial
Court and held that the defendant has not followed the
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principles of natural justice and the findings of the Enquiry
Officer is not justifiable and by the impugned order, set
aside the judgment and decree of the Trial Court and held
that the order dated 28.08.2001 passed by the defendant
be declared as null and void, and the defendant was
directed to restore the basic pay of the plaintiff for the
present.
9. Aggrieved by the judgment and decree of the
First Appellate Court, the present second appeal by the
appellant - Corporation.
10. Learned counsel for the appellant - Corporation
contends that the first appellate Court has erroneously held
that there was procedural lapses in the domestic enquiry
conducted by the Corporation and the order of punishment
was passed without observing that the principles of natural
justice. Learned counsel would contend that the very suit
before Civil Court was not maintainable in the light of the
separate mechanism provided under the regulations of the
appellant-Corporation. Learned counsel would contend that
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the Civil Court's jurisdiction was barred and the jurisdiction
of the Civil Court is maintainable only when there is
violation of principles of common law or constitutional
provisions or on the other grounds and the nature of right
sought in the present case would not be the one to be
covered under the Civil Court's jurisdiction. Learned counsel
would contend that the first appellate Court has failed to
consider that the enquiry conducted by the respondent was
in accordance with law and in the absence of any violation
of principles of natural justice and in light of the separate
mechanism provided, the Civil Court's jurisdiction was
totally barred. In support of her contentions, learned
counsel has placed reliance on the following decisions:
(i) Rajasthan State Road Transport
Corporation and others Vs. Deen Dayal
Sharma1 [Deen Dayal Sharma]
(ii) Rajasthan State Road Transport
Corporation and another Vs. Bal Mukund
Bairawa 2 [Bal Mukund Bairawa]
(2010) 6 SCC 697
(2009) 4 SCC 299
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11. Per contra, learned counsel appearing for the
respondent would justify the judgment and decree of the
first appellate Court and would contend that the first
appellate Court has rightly held that the principles of
natural justice have been violated in not issuing notice to
the plaintiff, when the Disciplinary Authority was holding
articles of charge No.1 totally against the applicant.
Learned counsel would contend that the suit before the Civil
Court was very much maintainable in light of the decision of
the Apex Court in the case of Bal Mukund Bairawa stated
supra to contend that when an employee is aggrieved by
the disciplinary action, they can raise an industrial dispute
as per the provisions of the Industrial Disputes Act, 1947 or
can avail the opportunity under the common law by filing a
civil suit provided that the civil rights are infringed or
constitutional rights or principles of natural justice have
been violated and would contend that in the present case,
the principles of natural justice have been infringed and the
suit of the plaintiff is maintainable and the first appellate
Court has rightly considered and decreed the suit of the
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plaintiff. In support of his contentions, learned counsel for
the respondent has placed reliance on the following
decisions:
(i) K.P. Puttaram Vs. Vijaya Bank Ltd.,3 [K.P.
Puttaram]
(ii) Mohammed Ali Vs. the Management of
Karnataka Electricity Board4 [Mohammed
Ali]
(iii) Management of North West Road
Transport Corporation Vs. Ramachandra
Narayan Joshi5 [Ramachandra Narayan
Joshi]
(iv) The KSRTC and another Vs. Andappa S/o.
Veerappa Guggari6 [Andappa]
(v) Huchegowda Vs. Karnataka Appellate
Tribunal [Huchegowda]
(vi) Government of Karnataka Vs Govinda
Shetty8 [Govinda Shetty]
ILR 1991 KAR 3614;
(2006) 6 AirKarR 555;
RSA No.1104/2008, DD: 05.06.2014;
RSA No.5051/2008, DD: 07.02.2014
(1985) ILR (Karnataka) 3696
ILR 1985 SCC Online 933
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(vii) P.V. Mahadevan Vs. MD. T.N... Housing
Board9 [P.V. Mahadevan]
(viii) Ranjit Singh Vs. Union of Inida & Ors.10
[Ranjit Singh]
(ix) S.S. Rathore Vs. State of Madhya
Pradesh11 [S.S. Rathore]
(x) Chairman-cum-Managing Director, Coal
India Limied and others Vs. Ananta Saha
and others12 [Ananta Saha]
12. This Court has carefully considered the rival
contentions urged by the learned counsel appearing for the
parties and perused the judgment and decree of the Courts
below.
13. The Trial Court held that the Civil Court has no
jurisdiction to entertain the suit in light of the nature of
right sought to be enforced by the plaintiff. The main
grievance of the plaintiff as evident from the plaint
(2005) 6 SCC 636
AIR 2006 SC 3685
(1989) 4 SCC 582
(2011) 5 SCC 142
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averment, more particularly at paragraph No.2, which
reads as under:
"2. That the plaintiff is working as conductor with
the defendant and his service deserved high
appreciation. But to the surprise of the plaintiff
articles of charges dated 13.10.1999 came to be
served and the same is not in accordance with C and
D. The charge sheet was highly be pre judged and
the same is bad in law. Though suitable reply was
given refuting the allegations that were made against
the plaintiff, an inquiry was ordered appointing
sahayak Sanchar Vyavastapakaru as the enquiry
officer and an enquiry was conducted in which the
principles of natural justice were in toto were
violated. An opportunity was not given to cross-
examine the management witness was given and the
enquiry officer despite it observed that the first
charge was not proved and gave his findings and the
same is produced and is at Annexure-A in the list of
documents, since the enquiry officer had observed
that the first charge was not proved, the Disciplinary
Authority differed with the findings and without
giving any show cause notice to plaintiff to show
cause why he should not differ with the findings of
enquiry of enquiry officer, state away passed order
ordering that the basic pay of he plaintiff is reduced
by five incremental stages permanently and passed
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order accordingly on 28/08/2001 and he said order is
produced and the same is at Annexure-B in the list of
document. It is submitted that the basic pay cannot
be reduced."
14. Perusal of the plaint averments evidence that the
plaintiff wants to contend that the Disciplinary Authority,
while deferring with the findings of the Enquiry Officer, has
violated the principles of natural justice in not issuing show-
cause notice as to why the Disciplinary Authority should not
defer with the finding of the Enquiry Officer and this is the
reason for the plaintiff to contend that the principles of
natural justice have been violated. Though the merits of
framing of charges or holding of enquiry is not the
jurisdiction of this Court as rightly contended by the learned
counsel for the respondent-plaintiff and the decisions
placed in the said context, however, in order to arrive at a
conclusion that there was violation of principles of natural
justice and the same to come within the purview of
jurisdiction of the Civil Court, it is necessary to consider the
aspect of "whether non-issuance of notice by the
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Disciplinary Authority while confirming the order of the
Enquiry Officer has led to violation of principles of natural
justice". The charges framed by the Enquiry Officer at
Ex.D5, articles of charge No.1 was partially proved holding
that the charges leveled is proved and the Disciplinary
Authority did not disagree with the findings of the enquiry,
on the other hand, the findings of the enquiry officer was
accepted by the disciplinary authority in its entirety and
order of punishment was passed based on the findings of
the enquiry officer, the procedure followed by the
corporation was after the submission of the findings of the
enquiry officer and thus, the plaintiff is unable to
substantiate as to how the enquiry conducted by the
enquiry officer and findings of the disciplinary authority was
by violating the principles of natural justice and to make
the suit of the plaintiff maintainable before the Civil Court.
The judgment relied by the learned counsel appearing for
the respondent in the case of Bal Mukund Bairawa stated
supra, the Apex Court has clearly held that the suit is
maintainable before Civil Court, if it pertains to violation of
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principles of natural justice or constitutional provisions, the
Apex Court clearly held that if the dispute arises out of
rights and obligation under the Industrial Disputes Act or
sister law like Industrial Employment Standing Orders Act
1946, the Civil Court's jurisdiction is barred. The Apex
Court has given deliberate consideration and considered the
conflicting decision in the case of Rajasthan SRTC Vs.
Krishna Kant13 and in the case of Premier Automobiles
Ltd., Vs. Kamlekar Shantaram Wadke of Bombay14 and
at paragraph Nos.23, 24 & 25 has held as under:
"23. The question came up for consideration
again before a three Judge Bench of this Court in
Krishna Kant, wherein, inter alia, it was held: (SCC
p.92, para 29)
"29. Now let us examine the facts of the
appeals before us in the light of the principles
adumbrated Premier Automobiles. The first
thing to be noticed is the basis upon which the
plaintiffs-respondents have claimed the several
reliefs in the suit. The basis is the violation of
(1995) 5 SCC 75
(1976) 1 SCC 496
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the certified Standing Orders in force in the
appellant-establishment. The basis is not the
violation of any terms of contract of service
entered into between the parties governed by
the law of contract. At the same time, it must
be said, no right or obligation created by
the Industrial Disputes Act is sought to be
enforced in the suit. Yet another circumstance
is that the Standing Orders Act does not itself
provide any forum for the enforcement of
rights and liabilities created by the Standing
Orders. The question that arises is whether
such a suit falls under Principle No. 3 of
Premier Automobiles or under Principle No. 2?
We are of the opinion that it falls under
Principle No. 3. The words "under the Act" in
Principle No. 3 must, in our considered opinion,
be understood as referring not only
to Industrial Disputes Act but also to all sister
enactments -- [like Industrial Employment
(Standing Orders) Act] which do not provide a
special forum of their own for enforcement of
the rights and liabilities created by them. Thus
a dispute involving the enforcement of the
rights and liabilities created by the certified
Standing Orders has necessarily got to be
adjudicated only in the forums created by
the Industrial Disputes Act provided, of course,
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that such a dispute amounts to an industrial
dispute within the meaning of Sections
2(k) and 2-A of Industrial Disputes Act or such
enactment says that such dispute shall be
either treated as an industrial dispute or shall
be adjudicated by any of the forums created by
the Industrial Disputes Act. The civil courts
have no jurisdiction to entertain such suits. In
other words, a dispute arising between the
employer and the workman/workmen under, or
for the enforcement of the Industrial
Employment Standing Orders is an industrial
dispute, if it satisfies the requirements
of Section 2(k) and/or Section 2-A of the
Industrial Disputes Act and must be
adjudicated in the forums created by
the Industrial Disputes Act alone. This would
be so, even if the dispute raised or relief
claimed is based partly upon certified Standing
Orders and partly on general law of contract."
[emphasis supplied]
24. It was, however, noticed: (Krishna Kant
case, pp.93-94, para 33)
"33. Coming to the order dated 18-10-
1989 in SLP (C) No. 9386 of 1988 made by a
Bench of two learned Judges, the important
fact to be noticed is that in that suit, no
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allegation of violation of the certified Standing
Orders was made. The only basis of the suit
was violation of principles of natural justice. It
was, therefore, held that it was governed by
Principle No. 2 in Premier Automobiles. In this
sense, this order cannot be said to lay down a
proposition contrary to the one in Jitendra Nath
Biswas. We may also refer to a decision of this
Court rendered by Untwalia, J., on behalf of a
Bench comprising himself and A.P. Sen, J.,
in Sitaram Kashiram Konda v. Pigment Cakes
and Chemicals Mfg. Co. That was a case arising
from a suit instituted by the workman for a
declaration that termination of his service is
illegal and for reinstatement. In the alternative,
he claimed compensation for wrongful
termination. The jurisdiction of the civil court
was sustained by this Court on the ground that
he has made out a case for awarding
compensation though the civil court could
not decree reinstatement. Though the report
does not indicate the basis put forward by the
workman-plaintiff therein, the court found on
an examination of all the facts and
circumstances of the case that "it is not quite
correct to say that the suit filed by the
appellant is not maintainable at all in a civil
court". Obviously it was a case where the
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dispute related to enforcement of rights flowing
from general law of contract and not from
certified Standing Orders. This decision cannot
also be read as laying down a different
proposition from Premier Automobiles."
25. The principles flowing from the
discussions in the said decisions were summarized
thus: (Krishna Kant case, pp. 94-95, para 35)
"35. We may now summarise the
principles flowing from the above discussion:
(1) Where the dispute arises from
general law of contract, i.e., where reliefs are
claimed on the basis of the general law of
contract, a suit filed in civil court cannot be
said to be not maintainable, even though such
a dispute may also constitute an "industrial
dispute" within the meaning of Section
2(k) or Section 2-A of the Industrial Disputes
Act, 1947.
(2) Where, however, the dispute involves
recognition, observance or enforcement of any
of the rights or obligations created by
the Industrial Disputes Act, the only remedy is
to approach the forums created by the said
Act.
(3) Similarly, where the dispute involves
the recognition, observance or enforcement of
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rights and obligations created by enactments
like Industrial Employment (Standing Orders)
Act, 1946 -- which can be called "sister
enactments" to Industrial Disputes Act -- and
which do not provide a forum for resolution of
such disputes, the only remedy shall be to
approach the forums created by the Industrial
Disputes Act provided they constitute industrial
disputes within the meaning of Section
2(k) and Section 2-A of Industrial Disputes Act
or where such enactment says that such
dispute shall be either treated as an industrial
dispute or says that it shall be adjudicated by
any of the forums created by the Industrial
Disputes Act. Otherwise, recourse to civil court
is open.
(4) It is not correct to say that the
remedies provided by the Industrial Disputes
Act are not equally effective for the reason that
access to the forum depends upon a reference
being made by the appropriate Government.
The power to make a reference conferred upon
the Government is to be exercised to
effectuate the object of the enactment and
hence not unguided. The rule is to make a
reference unless, of course, the dispute raised
is a totally frivolous one ex facie. The power
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conferred is the power to refer and not the
power to decide, though it may be that the
Government is entitled to examine whether the
dispute is ex facie frivolous, not meriting an
adjudication.
(5) Consistent with the policy of law
aforesaid, we commend to Parliament and the
State Legislatures to make a provision enabling
a workman to approach the Labour
Court/Industrial Tribunal directly -- i.e.,
without the requirement of a reference by the
Government -- in case of industrial disputes
covered by Section 2-A of the Industrial
Disputes Act. This would go a long way in
removing the misgivings with respect to the
effectiveness of the remedies provided by
the Industrial Disputes Act.
(6) The certified Standing Orders framed
under and in accordance with the Industrial
Employment (Standing Orders) Act, 1946 are
statutorily imposed conditions of service and
are binding both upon the employers and
employees, though they do not amount to
"statutory provisions". Any violation of these
Standing Orders entitles an employee to
appropriate relief either before the forums
created by the Industrial Disputes Act or the
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civil court where recourse to civil court is open
according to the principles indicated herein.
(7) The policy of law emerging
from Industrial Disputes Act and its sister
enactments is to provide an alternative
dispute-resolution mechanism to the workmen,
a mechanism which is speedy, inexpensive,
informal and unencumbered by the plethora of
procedural laws and appeals upon appeals and
revisions applicable to civil courts. Indeed, the
powers of the courts and tribunals under
the Industrial Disputes Act are far more
extensive in the sense that they can grant such
relief as they think appropriate in the
circumstances for putting an end to an
industrial dispute."
15. The law is settled that if infringement of the
standing order or other provisions of the Industrial Disputes
Act are alleged, the Civil Court's jurisdiction may be held to
be barred, but if the suit is based on violation of principles
of common law or constitutional provisions or on other
grounds, the Civil Court's jurisdiction may not be barred.
The plaintiff has failed to establish that there was any
violation of the principles of natural justice for the Civil
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Court to have the jurisdiction. In the present
circumstances, the jurisdiction of the Civil Court is totally
barred and there is no violation of principles of natural
justice, as contended by the plaintiff-respondent herein.
The decisions placed by learned counsel for the respondent,
this Court has absolutely no quarrel that when principles of
natural justice are violated, the Civil Court has jurisdiction
and not otherwise.
16. The Apex Court in the case of Deen Dayal
Sharma, stated supra at paragraph Nos.15 & 16, has held
as under:
"15. The legal position that Standing Order
have no statutory force and are not in the nature
of delegated/subordinate legislation is clearly
stated by this Court in krishna Kant2 . In that case
(Krishna Kant2), this Court while summarising the
legal principles in para 35(6) stated that the
certified standing Orders framed under and in
accordance with the Industrial Employment
(Standing Orders) Act, 1946 are statutorily
imposed conditions of service and are binding both
upon the employers and employees, though they
do not amount to "statutory provisions" and any
violation of these Standing Orders entitled an
employee to appropriate relief either before the
forum created by the Industrial Disputes Act or the
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civil court where recourse to civil court is open
according to the principles indicated therein.
16. In Bal Mukund Bairwa (2)6 , in para 37 of
the Report, the position has been explained that if
the infringement of the Standing Orders is alleged,
the civil court's jurisdiction may be held to be
barred but if the suit is based on the violation of
principles of common law or constitutional
provisions or on other grounds, the civil court's
jurisdiction may not be held to be barred. In our
opinion, the nature of right sought to be enforced
is decisive in determining whether the jurisdiction
of civil court is excluded or not."
17. The decisions of the Apex Court in the cases of
Deen Dayal Sharma and Bal Mukund Bairawa stated
supra, on similar terms where the Apex Court held that
under what circumstances, the Civil Court's jurisdiction is
barred. In the instant case, the plaintiff was served with the
show cause notice by the Enquiry Officer and the
Disciplinary Authority confirmed the charges leveled against
the plaintiff and thus, the question of reissuance of show
cause notice was not contemplated, as contended by the
plaintiff - respondent and in the said circumstances, the
only remedy available to the plaintiff - respondent was to
raise industrial dispute and not before the Civil Court. In
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the circumstances, this Court is of the considered view that
the Civil Court has no jurisdiction to entertain the suit, in
light of the separate mechanism provided and accordingly,
the substantial question of law framed by this Court is
answered in favour of the appellant and this Court pass the
following:
ORDER
(i) The regular second appeal is hereby
allowed.
(ii) The judgment and decree of the Courts
below are hereby set aside holding that
the suit of the plaintiff is dismissed and the
only remedy available is by raising an
industrial dispute and not a civil suit and
the Civil Court has no jurisdiction to
entertain and try the suit filed by the
plaintiff - respondent.
Sd/-
JUDGE
VNP & EM
