Karnataka High Court
Hanamant S/O. Shankar Patil vs The Management Nwkrtc on 12 December, 2023
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NC: 2023:KHC-D:14584
WP No. 72469 of 2012
C/W WP No. 63246 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 72469 OF 2012 (L-KSRTC)
C/W
WRIT PETITION NO. 63246 OF 2011
IN WP NO.72469/2012
BETWEEN:
SRI. HANAMANT S/O. SHANKAR PATIL
AGE: 59 YEARS, OCC: NIL,
R/O. AT POST: YELLUR, PATIL GALLI,
TQ & DIST: BELGAUM.
...PETITIONER
(BY SRI. RAVI HEGDE, ADVOCATE)
AND:
THE MANAGEMENT OF NWKRTC,
BELGAUM DIVISION,
REPTD. BY ITS DIVISIONAL CONTROLLER,
MOHANKUMAR BELGAUM DIVISION, BELGAUM.
B SHELAR
...RESPONDENT
Digitally signed by
(BY SMT. SHASHIKALA L. DESAI, ADVOCATE)
MOHANKUMAR B
SHELAR
Date: 2023.12.16
13:44:37 +0530 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR
DIRECTION OR ORDER, QUASHING THE AWARD PASSED BY
ADDL. LABOUR COURT, HUBLI IN KID.NO.29/2007 DATED
31/08/2010, TO THE EXENT THE PETITIONER IS AGGRIEVED, WHICH
IS PRODUCED AS ANNEXURE-F AND CONSQUENT TO THE QUASHING
OF THE AWARD ISSUE A WRIT OF MANDAMUS OR ANY OTHER WRIT
OR ORDER OF DIRECTING THE RESPONDENT TO PAY THE FULL BACK
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NC: 2023:KHC-D:14584
WP No. 72469 of 2012
C/W WP No. 63246 of 2011
WAGES AND OTHER CONSEQUENTIAL BENEFITS TO THE
PETITIONER.
IN WP NO.63246/2011
BETWEEN:
THE MANAGEMENT OF NWKRTC,
BELGAUM DIVISION,
REPTD. BY ITS DIVISIONAL CONTROLLER,
BELGAUM DIVISION, BELGAUM.
R/BY, THE MANAGING DIRECTOR,
NWKRTC, CENTRAL OFFICE,
GOKUL ROAD, HUBLI.
...PETITIONER
(BY SMT. VINUTA M. KHANNUR, ADV. FOR
SRI. MADANMOHAN M. KHANNUR, ADVOCATE)
AND:
SRI. HANAMANT S/O. SHANKAR PATIL
AGE: 54 YEARS, OCC: NIL,
R/O. PATIL GALLI, AT & PO: YELLUR,
TQ & DIST: BELGAUM.
...RESPONDENT
(BY SRI. RAVI HEGDE, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER OF REINSTATE
BE QUASHED THROUGH AWARD PASSED BY DJ AND THE
PRESIDENT OFFICER AND ADDL. LABOUR COURT, HUBLI IN
KID.NO.29/2007 DATED 31/08/2010 IN THE ENDS OF JUSTICE AND
EQUITY OF ANNEXURE-F.
THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 72469 of 2012
C/W WP No. 63246 of 2011
ORDER
1. Heard.
2. Two petitions are filed challenging the award
passed by the Additional Labour Court, Hubballi in KID
No.29/2007. The employer-NWKRTC is before this Court
challenging the order setting aside the order of
termination of employee and other consequential benefits
granted to the employee. The employee is before this
Court challenging the order denying back wages and other
consequential benefits.
3. Learned counsel for the employer justifying the
petition would submit that the employee was
unauthorizedly absent while he was in service and this
aspect is duly proved in terms of the enquiry report at
Annexure-D. Learned counsel for the employer would
invite attention of this Court to the enquiry report by the
disciplinary authority and would contend that the employer
has taken a proper decision to terminate the service of the
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employee for unauthorized period of absence from
08.01.2006 to 18.01.2007.
4. It is the contention of the learned counsel for
the employer that since the employee was unauthorizedly
absent for a period of 1 year, the order of termination of
the employee is justified, as such, would contend that the
Additional Labour Court could not have set aside the order
of termination.
5. Learned counsel for the employee would submit
that order of termination is illegal under Section 33(2)(b)
of the Industrial Disputes Act, 1947 as the employer
violated the said provision. When the disciplinary enquiry
was pending against the employee, there was an industrial
dispute at I.D.No.148/2005 and taking note of the
pendency of industrial dispute, the competent authority
has issued communication dated 13.08.2011 informing the
concerned authority not to discharge/terminate the service
of any employee pursuant to the disciplinary enquiry
without obtaining necessary sanction as contemplated
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under the provisions of the Industrial Disputes Act. It is
further stated that on 18.01.2007, article of charges were
issued to the petitioner providing 10 days time to reply to
the said article of charges. Without awaiting for the reply,
the disciplinary officer is appointed on the same day. Thus,
he would contend that entire proceeding is vitiated.
6. He would also contend that since the
termination order is passed in violation of Section 33(2)(b)
of the Industrial Disputes Act, the order terminating the
employee is non-est in the eyes of law and would contend
that the issue is covered by the judgment of the Division
Bench of this Court in W.A.No.100366/2014 and
W.A.No.5738/2012 and the entire back wages and other
consequential relief are to be given to the petitioner.
7. This Court has considered the contentions
raised at the bar.
8. There is no dispute that the employee was
appointed as driver by the employer. The disciplinary
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enquiry came to be initiated on the premise that employee
was unauthorisedly absent from 08.01.2006 to
18.01.2007. The employee claims that he was suffering
from spinal cord injury and he has submitted an
application for leave along with medical records to justify
his claim for leave but the same was not granted.
9. The disciplinary officer after holding enquiry has
found that the employee is guilty and terminated his
services. This order was called in question before the
Industrial Tribunal. The evidence was led before the
Tribunal. The Industrial Tribunal has noticed the fact that
article of charges was issued on 18.01.2007 and enquiry
officer was appointed on the same day, without affording
an opportunity to the workman. The Industrial Tribunal
has come to the conclusion that this amounts to biased
attitude on the part of the employee. The Industrial
Tribunal has relied on the judgment of the Apex Court in
State of Punjab Vs. V.K.Khanna and others, AIR
2001 SC 343 and has come to the conclusion that haste
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shown by the employer reflects the bias against the
employee. Considering this aspect, the Tribunal has
concluded that penalty for termination of services has to
be set aside and accordingly, it was set aside and
employee was ordered to be reinstated. However, the
Tribunal has declined to grant back wages to the
employee.
10. Section 33(2)(b) of the Industrial Disputes Act
reads as under:
"33(2)(b) for any misconduct not connected with the
dispute, or discharge or punish, whether by dismissal or
otherwise, that workman: Provided that no such
workman shall be discharged or dismissed, unless he
has been paid wages for one month and an application
has been made by the employer to the authority before
which the proceeding is pending for approval of the
action taken by the employer."
11. On a reading of the aforementioned provision, it
is apparent that in case any Industrial dispute is pending,
then the employer shall not discharge/terminate the
employee from the service without there being any opinion
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by the competent authority. The law in this regard is well
settled and accordingly, in the judgments referred to
above, the Division Bench has taken a similar view and
there is no dispute over the fact that Industrial Tribunal in
I.D. No.148/2005 was pending when the enquiry was
conducted and the order of termination was passed
against the employee.
12. This being the position, the impugned order of
termination is non-est in the eyes of law. Hence, the order
of the Industrial Tribunal setting aside the order of
termination of the employee is justified. Applying the ratio
laid down in the aforementioned cases, where the Court
has concluded if the disciplinary enquiry is non-est in the
eyes of law and consequential benefit of back wages and
other consequential service benefit ought to be granted to
the employee, and the same is not granted, this Court
finds that the petition filed by the employee has to be
allowed.
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13. It is further stated that employee has attained
the age of superannuation, as such, there cannot be an
order reinstating the employee.
14. Sri.Ravi Hegde, the learned counsel for the
employee on instructions submits that employee will only
claim 50% back wages having regard to the fact that he
has served under the employer. Accordingly, the petition
filed by the employer has to be allowed in part.
15. The employer shall pay 50% of the back wages
and other consequential service benefits to the employee
within four months from the date of receipt of copy of this
order.
16. The impugned order of the Tribunal is modified
to the above said extent.
17. Both petitions are allowed in part.
Sd/-
JUDGE
KGK/ct-an
