Karnataka High Court

Karnataka State Road Transport ... vs Ganganna on 14 June, 2023

Bench: K S Hemalekha

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 14TH DAY OF JUNE, 2023

                             BEFORE

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

          WRIT PETITION No.57936/2018 (L-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD TRANSPORT CORPORATION
TUMKUR DIVISION,
TUMKUR,
BY ITS DIVISIONAL CONTROLLER,
REPRESENTED BY ITS
CHIEF LAW OFFICER.                         ... PETITIONER

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

AND:

GANGANNA
S/O. BASAPPA,
R/O. DODDAHATTI,
SAMPIGE POST,
DANDINALAVARA HOBLI,
TURUVEKERE TALUK,
TUMKUR DISTRICT - 572 101.                      ... RESPONDENT

(BY SRI K. SRINIVASA, ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED    13.06.2018   IN   SLA   NO.127/2011   PASSED   BY   THE
INDUSTRIAL TRIBUNAL, BANGALORE (ANNEXURE-K).


       THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 01/06/2023 FOR ORDERS AND COMING FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                             -2-


                        ORDER

The present petition filed by the Karnataka State

Road Transport Corporation assailing the order dated

13.06.2008 passed by the Industrial Tribunal, Bangalore

(hereinafter referred to as the 'Tribunal' for short) in SLA

No.127/2011.

2. The petitioner is termed as the Corporation and

the respondent is termed as workman for the sake of

convenience.

3. The brief facts are that, the workman was

working as a driver with the Corporation and has remained

unauthorizedly absent from 01.01.2011 without submitting

any leave application till 01.12.2011 i.e., the date on

which the dismissal order is passed by the Disciplinary

Authority accepting the report of the Enquiry Officer. The

workman was paid towards one month salary and the

Corporation filed an application under Section 33 (2) (b) of

the Industrial Disputes Act, 1947 (hereinafter referred to

as 'the Act, 1947' for short) seeking approval of the order

of the dismissal before the Tribunal in SLA No.127/2011

since the industrial dispute in I.D. No.148/2005 concerning

the workman and the Corporation was pending

consideration.

4. The Tribunal framed the issue regarding

whether the validity of the Domestic Enquiry conducted by

the Corporation was fair and proper preceding to the

dismissal order dated 01.12.2011 and the Tribunal by its

order dated 22.07.2017 held that the domestic enquiry

against the workman was not fair and proper. Thereafter,

the application filed by the Corporation under Section 33

(2) (b) of the Act, 1947 for approval of the dismissal order

was considered by the Tribunal and the Tribunal by its

order dated 13.06.2018 dismissed the application on the

ground that the dismissal of the workman from the service

is victimization and due to unfair labour practice adopted

by the Corporation. Aggrieved by the said order, the

Corporation has filed this petition.

5. Heard the learned counsel for the petitioner and

the learned counsel appearing for the respondent.

6. Smt. H.R. Renuka, learned counsel for the

Corporation would contend that the reasoning of the

Tribunal in holding that the domestic enquiry held was not

fair and proper is not justified since the Corporation had

posted the matter for preliminary enquiry and the date of

enquiry was intimated to the workman, in spite of which,

the workman did not appear and hence, notice was duly

served on him by RPAD as well as through paper

publication which was published on 05.09.2011. Since the

workman did not appear on several dates, the Enquiry

Officer conducted the enquiry holding that the Articles of

charge has been proved and since the workman did not

apply for leave for the period of absence from 01.01.2011,

the enquiry held by the Enquiry Officer cannot be held in

violation of principles of natural justice.

7. Learned counsel would further contend that the

workman does not dispute about his absence from his duty

from 01.01.2011 but contends that his absence was not

willful. It is also contended that the medical certificate

produced by the workman is not relating to the period of

the absence and thus, the rejection of the application

seeking approval of the order of the dismissal is not

justifiable and there is no victimization and unfair labour

practice as held by the Tribunal. In support of her

contention, learned counsel has relied upon the judgment

of the Division Bench of this Court in the case of

Bangalore Metropolitan Transport Corporation Vs.

B.K. Samangi in W.A.No.3064/2018 dated

11.10.2022 [Bangalore Metropolitan Transport

Corporation].

8. Per contra, Sri. K. Srinivasa, learned counsel

appearing for the respondent-workman would contend that

at the time of considering the application under Section 33

(2) (b) of the Act, 1947 for approval, the Tribunal has to

consider whether there was any element of victimization or

unfair labour practice involved while passing the impugned

order of dismissal and the Tribunal by its order dated

22.07.2017 having held that the domestic enquiry

conducted by the Corporation is not fair and proper, was

justified in holding that there was victimization and unfair

labour practice on the part of the Corporation. Learned

counsel would further contend that the absence from duty

from 01.01.2011 was due to medical reasons and taking

note of the absence from the duty was not willful but for

bonafide and genuine reason, the application seeking

approval dismissed by the Tribunal does not call for any

interference.

9. Having heard the learned counsel for the parties

and on perusal of the entire material on record, the points

that arise for consideration are:

"1. Whether the workman has established that the enquiry held is not just and proper?

2. Whether the workman has established that there was an element of victimization and unfair labour practice?

3. Whether the Tribunal was justified in dismissing the application filed under Section 33 (2)

(b) of the Act, 1947 seeking approval of the order of dismissal?"

10. The fact that the workman was absent from

duty from 01.01.2011 to 01.12.2011 is not in dispute. The

defence of the workman is that his absence was due to

bonafide and genuine reasons since he was admitted in the

hospital during the said period. The Tribunal holds that the

domestic enquiry was not fair and proper and that the

workman was subjected to victimization and unfair labour

practice. The enquiry contemplated under Section 33 (2)

(b) of the Act, 1947 with respect to the validity and legality

of the domestic enquiry, is a very limited nature. It can

discard the findings entered by the enquiry provided the

findings are perverse and the Tribunal can hold that there

is a perverse finding only if there is no legal evidence at all

recorded in the domestic enquiry against the concerned

employee with reference to the charge or if no reasonable

person can arrive at a conclusion of guilt on the charge

levelled against the petitioner on the evidence recorded

against him in the domestic enquiry.

11. The material on record reveals in the domestic

enquiry that the Corporation led evidence regarding the

absence of the workman from 01.01.2011 to 01.12.2011.

The enquiry was posted on 12.07.2011 for preliminary

enquiry and the workman was issued with the notice

notifying the date of enquiry. Since the workman did not

appear, the enquiry stood adjourn to 12.09.2011 where on

that day also the workman did not appear and the paper

publication was taken in Kannada Prabha Daily Newspaper

and the workman did not appear before the Enquiry

Officer. The ex-parte enquiry was held and since the

workman did not submit any leave application for the

period of absence from 01.01.2011 to 01.12.2011, the

articles of charge were proved against the workman. The

workman was required to prove that he had sought leave

by producing medical certificate, the workman did not

submit leave application seeking leave for the said period

and the medical documents produced were not pertaining

to the period of absence and the said aspect was not

considered by the Tribunal.

12. The Tribunal refused to accord approval on two

counts:

1) That the domestic enquiry was not conducted

fairly and the same is vitiated.

2) That the workman was subjected to

victimization and unfair labour practice.

13. To hold that the domestic enquiry was not fair,

the Tribunal has failed to consider that it is not the case of

workman that he was not afforded an opportunity. On the

other hand, the material on record evidences that in spite

of issuing notice to the workman, he has not chosen to

appear in the domestic enquiry nor appeared on notice

before the disciplinary authority, the principles of natural

justice should not be stretched to such an extent to permit

the person to take undue advantage of his absence to

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appear in the domestic enquiry and make mockery of the

domestic enquiry as held in the case of Management of

Binny Ltd. Engineering Division Vs. Presiding Officer,

Industrial Tribunal, and Ors. reported in (2003) III

LLJ 1127 (MAD). Thus, the Tribunal holding that the

enquiry held was not just and proper is not sustainable.

14. In the absence of any material produced by the

workman to show his absence from duty from 01.01.2011

to 01.12.2011 is not willful and due to bonafide and

genuine reasons and no materials are forthcoming. An

employee is under obligation not to be absent himself from

work without good cause during the time, which he is

required to be in work by the terms of his contract of

service and the absence without leave is misconduct. The

workmen to show his absence from 01.01.2011 to

01.12.2011, no materials are placed by the workman nor

to establish that he availed the leave on medical ground.

The workman unauthorizedly remained absent for the said

period and has not sought leave from the higher authority.

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15. For the reasons stated supra, the Tribunal

without considering that the application filed by the

Corporation was for approval of the dismissal, has decided

the case on merits. The Apex Court in the case of John

D'Souza Vs. Karnataka State Road Transport

Corporation reported in (2019) 18 SCC 47 has held that

proceedings under Section 33(2) are summary in nature.

The concerned authority shall only consider a limited two

step enquiry as follows:

"First, it has to be satisfied that on basis of record of domestic inquiry that the same was conducted properly in accordance with the principles of natural justice and that prima facie the discharge/dismissal does not amount to unfair labor practice or victimization of the workmen.

Second, only if the Labor Court/Tribunal finds that the domestic inquiry suffers from any inherent defect or infirmity, it has to come to its conclusion on assessment of evidence adduced by the parties.

The SC in this case affirmed that the authorities are limited to the aforementioned scope under the

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section 33(2) and if they accord approval to the proposed punishment, and if the workman is aggrieved by such order then he can seek reference of dispute under section 10 of the Act for further adjudication"

16. The Division Bench of this Court in identical

circumstances in the case of Bangalore Metropolitan

Transport Corporation at paragraph No.8 has held as

under:

"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

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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."

17. Accordingly, point Nos.1 and 2 are answered

against the workman and point No.3 in favour of the

Corporation. For the foregoing reasons, the Tribunal is not

justified in dismissing the application filed under

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Section 33 (2) (b) of the Act, 1947, seeking approval of

the order of dismissal, therefore, it is liable to be set-aside.

It is well settled law that, the approval of the dismissal

order does not preclude the workman from challenging the

order of the dismissal in accordance with law. Accordingly,

this Court pass the following: