Karnataka High Court

Karnataka State Road Transport ... vs K.R. Venkatesh on 5 July, 2023

Bench: K S Hemalekha

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 05TH DAY OF JULY, 2023

                         BEFORE

       THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

       WRIT PETITION No.57597/2017 (L-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
MYSURU CITY TRANSPORT DIVISION,
BANNIMANTAP,
MYSURU - 570 001
BY ITS DIVISIONAL CONTROLLER,
REPRESENTED BY ITS
CHIEF LAW OFFICER.                        ... PETITIONER

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

AND:

K.R. VENKATESH
AGED ABOUT 64 YEARS,
R/O. NO.54, 4TH BLOCK,
KUSHALNAGAR - 571 234,
MADIKERI DISTRICT.                      ... RESPONDENT

(BY SRI V.S. NAIK, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE AWARD OF THE LABOUR COURT, MYSURU IN REF.
NO.4/2015 DATED 15.02.2017 (ANNEXURE-B).

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 07/06/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
                            -2-

                       ORDER

The present petition is filed by the Karnataka State

Road Transport Corporation assailing the award of the

Labour Court, Mysuru in Ref.No.4/2015 dated 15.02.2017

(Annexure - B).

2. The petitioner herein is referred as "the

Corporation" and the respondent as "the workman" for

the sake of convenience.

3. The brief facts of the case are that, the

workman was appointed as a conductor in the

establishment of the Corporation. Since he remained

absent from duty without intimation from 01.11.2007

onwards, a report was submitted by the Depot Manager

with regard to the unauthorised absence of the workman

and a call letter was issued calling upon the workman to

report for the duty. The workman failed to report for

duty, articles of charges were issued for the unauthorised

absence. The workman replied to the articles of charges.

The Enquiry Officer recorded a finding that the charges

are proved and show-cause notice was issued along with

the findings to the workman and he submitted his reply.

The Disciplinary Authority, on the basis of the enquiry

report and the material placed before it, dismissed the

workman from his service. The workman attained

superannuation in the year 2011 and a dispute was raised

by the workman after six years of his retirement before

the Tribunal, Mysuru under Section 10(1)(c) of the

Industrial Dispute Act, 1947 (hereinafter referred to as

"the ID Act"). The Tribunal by its impugned award held

that the domestic enquiry held is fair and proper.

However, the Tribunal set aside the order of dismissal and

modified the punishment order directing 25% of back

wages for two years with denial of increments with

continuity of service and with consequential benefits and

no back wages was granted to the workman for four

years and one increment was forfeited. Aggrieved by the

setting aside of the order of dismissal and modifying the

order of punishment, the present petition is preferred by

the Corporation.

4. Heard Smt. H.R. Renuka, learned counsel for

the Corporation and Sri V.S. Naik, learned counsel for the

workman.

5. Learned counsel for the Corporation would

contend that,

(i) the Tribunal has entertained a stale dispute which

was referred in the year 2015 when the order of dismissal

of the workman from service is in the year 2009 and he

had also attained the age of superannuation in the year

2011 itself. Therefore, the reference ought to have been

rejected by the Tribunal on the ground of delay and

laches;

(ii) the Tribunal having held that the enquiry conducted

by the officer was just and proper and in the absence of

any justification for unauthorised absence of the

workman, the Corporation has proved the misconduct of

the workman and the Tribunal ought not to have

interfered with the order of dismissal;

(iii) the Tribunal, though has held that the workman was

involved in nearly nine cases of absence and was

punished in seven cases and two cases were pending as

on the date of his dismissal from service was not justified

in setting aside the order of dismissal;

(iv) the workman inspite of having given sufficient

opportunity to substantiate his claim for his unauthorised

absence from 01.11.2007 till the date of his dismissal and

having failed to substantiate the said allegations, the

Tribunal was not justified in modifying the order of

dismissal;

(v) the Tribunal held that the similarly placed workmen

who had remained unauthorisedly absent for duty for

number of days were allowed to continue their service

and the order against the present workman is nothing

but victimisation and unfair labour practice and that the

Corporation should have imposed minor punishment to

the workman, the said reasoning is totally contrary to the

material facts and circumstances of the case since the

workman is habitual absentee consistently absent from

work and the benefit of leniency shown to other workmen

would not arise to the present workman;

(vi) the findings of the Tribunal regarding the

modification of award would reflect lack of application of

mind as the Tribunal has held that the workman is

entitled for 25% back wages for two years while the

service led by the workman as on the date of dismissal

was one year and eight months, and that the award of

benefits to the employee who is a habitual absentee and

who has chosen to question the same after the

superannuation is erroneous. In support of her

contentions, she relied upon the judgments of the Apex

Court in the case of J.K. Synthetics Ltd. Vs.

K.P.Agrawal & another [(2007) 2 SCC 433] (J.K.

Synthetics Ltd.) and Nedungadi Bank Ltd. vs. K.P.

Madhavankutty & others [(2000)2 SCC 455]

(Nedungadi Bank Ltd).

6. Per contra, learned counsel appearing for the

workman would justify the order of the Tribunal and

would contend that the workman had submitted his leave

letter along with the documents. However, the

Corporation had noted that he was absent and the

enquiry conducted by the disciplinary authority is

perverse and exercising the discretionary power under

Section 11A of the ID Act, the Tribunal has rightly allowed

the reference of the workman. It is further submitted that

the punishment modified by the Tribunal is looking into

the unblemished service of the workman since his

appointment from the year 1990 and the same does not

call for any interference in the hands of this Court.

7. Having heard learned counsel for the parties

and on perusal of the material on record, the only point

that arises for consideration is,

"Whether the Corporation has made out a case to interfere with the award of the Labour Court in the facts and circumstances of the case?

8. The workman has contended that he was sick,

he had applied for leave from 01.11.2007 to 31.08.2008

and he had also submitted the medical documents.

According to the workman, leave letter was submitted to

the Corporation, the Corporation without accepting the

leave has marked that the workman was absent and a

false report has been submitted to the Corporation.

Though this contention was raised before the Tribunal,

the Tribunal has held that the domestic enquiry conducted

by the disciplinary authority is just, fair and proper. On

holding so, the workman examined himself as WW.1 and

got marked documents at Exs.W-1 to W-9. The Tribunal,

while modifying the order of dismissal held that the

misconduct committed by the workman was proved by

the Corporation. However, the order of dismissal passed

by the Corporation needs to be set aside and while

exercising the discretionary power under Section 11A of

the ID Act, one increment of the workman was withheld

and the Tribunal felt that only two years of service was

left, he was awarded 25% back wages. As rightly

contended by the learned counsel for the Corporation, the

order of the Tribunal in modifying the order of dismissal is

without application of mind and without considering that

the dispute was raised by the workman only in the year

2015 i.e., after a delay of four years and that the Tribunal

condoned the delay holding that the workman had

remained absent due to medical reason.

9. It is well settled law that mere fact that he

had not applied for leave would not be given a good

defence when the leave was refused by the employer in

exercise of his discretionary power unless it could be

shown that the action taken can be actuated by the desire

to victimise the workman. Though the workman tried to

contend that the similarly placed workmen were not given

an order of dismissal and there was victimisation by the

Corporation only on the present workman. The materials

produced makes it clear that there were around nine

cases pending against the workman and out of which, in

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seven cases, he was imposed minor punishment and two

cases were pending as on the date of his dismissal.

10. The contention that workman has been

victimised has been negated by the Tribunal. The Labour

Court having held that the misconduct on part of the

workman is proved by the corporation, ought to have

taken into consideration that the workman would not be

entitled for reinstatement neither for back wages nor for

continuity of service nor consequential benefits as held by

the Apex Court in the case of J.K. Synthetics Ltd.,

stated supra at para No.19 and the same reads as under:

"19.......What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits,

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follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held tobe proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent a employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments. promotions, etc.

11. In the instant case, the workman was

dismissed after lawfully and properly conducting the

disciplinary proceedings and after lapse of long years

raised a dispute, where the dispute has become staled

and the Apex Court in Nedungadi Bank Ltd, stated

supra at paragraph Nos.6, 7 and 8 as held as under:

"6. Law does not prescribe any time- limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not

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that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time When the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising

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industrial dispute was ex facie bad and incompetent.

7. In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in

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thus moving the High Court seeking an order to quash the reference in question.

8. It was submitted by the respondent that once a reference has been made under Section 10 of the Act a Labour Court has to decide the same and High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court. That is not a correct proposition to state. An administrative order which does not take into consideration statutory requirements or travels outside that is certainly subject to judicial review, limited though it might be. The High Court can exercise its powers under Article 226 of the Constitution to consider the question of very jurisdiction of the Labour Court. In National Engg. Industries Ltd. v. State of Rajasthan, this Court observed: (SCC p. 393, para 24)

"24. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject-

matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of

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the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."

12. Thus, the order of the Tribunal in setting aside

the order of dismissal needs to be interfered by this Court

and in the present case, the misconduct held to be

proved, reinstatement itself a consequential benefit

arising from imposition of a lesser punishment, award of

back wages for the period when the employee has not

worked would amount to rewarding the delinquent

employee and punishing the employer for taking action

for misconduct committed by the employee as held by the

Apex Court in J.K. Synthetics Ltd., stated supra and the

order of 25% back wages and consequential benefits

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