Karnataka High Court
The Management Of Nwkrtc vs Manjunath S/O Neelakanthappa on 5 April, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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WP No. 107562 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
R
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
WRIT PETITION NO. 107562 OF 2014 (L-KSRTC)
BETWEEN:
THE MANAGEMENT OF NWKRTC,
GADAG DIVISION,
R/BY ITS DIVISIONAL CONTROLLER,
GADAG, R/BY ITS CHIEF LAW OFFICER,
NWKRTC CENTRAL OFFICE, HUBLI.
... PETITIONER
(BY SMT. VEENA HEGDE, ADVOCATE)
AND:
MANJUNATH S/O NEELAKANTHAPPA BHOVER,
AGED ABOUT 48 YEARS, OCC: EX-DRIVER,
R/O. DESAI GALLI, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
... RESPONDENT
(BY SRI. RAVI HEGDE, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
Digitally signed by OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
VIJAYALAKSHMI M
KANKUPPI
Location: HIGH
THE NATURE OF CERTIORARI THERE BY QUASHING THE ORDER
COURT OF
KARNATAKA DATED 21/05/2013 PASSED BY THE LEARNED LABOUR COURT HUBLI
DHARWAD BENCH
IN APPLICATION NO.25/2012 THE COPY OF THE SAME IS PRODUCED
AND MARKED AS ANNEXURE-C TO THE WRIT PETITION AND
CONSEQUENTLY BE PLEASED TO DISMISS THE APPLICATION
NO.25/2012 FILED BY THE RESPONDENT ON THE FILE OF
PRESIDING OFFICER LABOUR COURT HUBLI IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 107562 of 2014
ORDER
The petitioner-Corporation is assailing the order in
Application No.25/2012 dated 21.05.2013 on the file of the
Presiding Officer, Labour Court, Hubli.
2. The petitioner hereinafter referred to as the
'Corporation' and the respondent as the 'workman'.
3. Brief facts of the case are that the workman was
working as a driver under the Corporation and he was
dismissed from service on 20.11.2006 for the proved
misconduct. After a lapse of six years, from the date of
dismissal order, the workman filed an application under
Section 33C(2) of the Industrial Disputes Act, 1947
(hereinafter referred to as the 'ID Act', for short) seeking a
direction to the Corporation to pay an amount of
Rs.6,11,103/- with interest at the rate of 18% per annum
from the date of dismissal i.e. 20.11.2006 to 31.08.2012 on
the basis of his last drawn salary. The labour Court by the
impugned order allowed the application and directed the
Corporation to pay a sum of Rs.6,11,103/- as wages from
20.11.2006 to 31.08.2012 with interest at the rate of 6%
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per annum from the date of order till the date of payment.
Aggrieved by the same, the present petition is filed by the
Corporation.
4. Heard Smt. Veena Hegde, learned counsel for the
Corporation and the Sri. Ravi Hegde, learned counsel for the
respondent-Workman.
5. Learned counsel for the Corporation would
contend that the application under Section 33C(2) of the ID
Act seeking wages from the date of dismissal with interest
at the rate of 18% per annum is not maintainable, as the
proceedings under Section 33C(2) of ID Act are in the
nature of execution proceedings, which envisage prior
adjudication or recognition of the claim of the workman by
the employer and the wages has to be paid at the rate
which they claim computation and when the basis of their
claim is disputed, the remedy under Section 33C(2) of ID
Act is not available to the workman. It is further contended
that, if there is any violation of Section 33(2)(b) of ID Act,
the workman is at liberty to file necessary application under
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Section 33A of ID Act and the claim petition filed by the
workman under Section 33C(2) of the ID Act is not
maintainable, as the order of dismissal existed as on the
date of filing of an application under Section 33C(2) of ID
Act. It is further contended that Section 33-C(2) of ID Act
is applicable only where an amount has already been
determined by a competent Court or any other authority,
whereas in the present case, the amount sought by the
workman has not been determined by any Court of law. In
support of her contentions, the learned counsel has placed
reliance on the decision of the Hon'ble Apex Court in the
case of State of Uttar Pradesh and another v. Brijpal Singh1.
6. Per contra, learned counsel for the Corporation
would justify the order passed by the labour Court and
would contend that the order of dismissal from service is
non-est as on the date of passing of the order in
N/o.148/2005, which was pending, and the petitioner had
not taken any approval of the order of dismissal under
Section 33(2)(b) of ID Act and as such, an application
(2005) 8 Supreme Court Cases 58
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under Section 33C(2)of ID Act is applicable. Learned
counsel further contended that the workman has filed an
application seeking wages from the date of his dismissal on
the ground that since the order of dismissal from service is
a non-est for violation of Section 33(2)(b) of ID Act, as
there is no order of dismissal against the workman and is
deemed to be in service and as such he is entitled for wages
from the date of dismissal and the application has been
rightly entertained by the labour Court. The learned counsel
placed reliance on the decision of the Co-ordinate Bench of
this Court rendered in Writ Petition No.14466/2010 between
Bangalore Metropolitan Transport Corporation, v.
R.Rajendran whereunder the Co-ordinate Bench considering
similar case, the application of the workman came to be
allowed by setting aside the order passed by the labour
Court. In support of his contention, he relied upon 5 Judge
Bench decision in Jaipur Zilla Sahakari Bhoomi Vikas Bank
Ltd. V. Ram Gopal Sharma and Others2.
(2002) 2 SCC 244
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7. Having heard the learned counsel for the
Corporation and the learned counsel for the workman, the
point that arises for consideration is:
"Whether the respondent-workman can file an application
under Section 33C(2) of the Industrial Disputes Act in the
absence of any challenge of the order of dismissal or in
the absence of an application filed by the Corporation
seeking approval of the order of dismissal under Section
33(2)(b) of ID Act?"
8. The undisputed facts are that, the workman has
been dismissed from service for the proved misconduct on
20.11.2006. The contention of the respondent-workman is
that the order of dismissal dated 20.11.2006 was not
approved in terms of Section 33(2)(b) of ID Act. Therefore,
the order of dismissal is non-est in the eye of law and
consequently, the respondent-workman has filed an
application under Section 33C(2) of ID Act to compute that
the workman is entitled to receive a sum of Rs.6,11,103/-
from 20.11.2006 till 31.08.2012 as arrears of wages.
9. At this stage, is it necessary to examine Section
33C(2) of the Industrial Disputes Act in deciding whether
the workman's application is maintainable or not?
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10. As on the date of the filing of the application
under Section 33C(2) of ID Act there was no relationship of
employer and employee between the parties and Section
33C(2) of ID Act reads as follows:
"33C. Recovery of money due from an
employer.-- (1) X X X
(2) Where any workman is entitled to receive from
the employer any money or any benefit which is capable
of being computed in terms of money and if any question
arises as to the amount of money due or as to the
amount at which such benefit should be computed, then
the question may, subject to any rules that may be made
under this Act, be decided by such Labour Court as may
be specified in this behalf by the appropriate Government
within a period not exceeding three months:
Provided that where the presiding officer of a
Labour Court considers it necessary or expedient so to do,
he may, for reasons to be recorded in writing, extend
such period by such further period as he may think fit."
11. A perusal of Section 33C(2)of ID makes it evident
that, there should be a relationship of employee and
employer and in the absence of challenge to the order of
dismissal dated 20.11.2006 before appropriate forum, the
application filed under Section 33C(2) of ID Act would not
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be maintainable. The ingredients of Section 33C(2) of ID
Act clearly envisages that, it is in the nature of execution
proceeding and the same envisages a prior adjudication or
recognition by an employer of the claim of the workman to
be paid wages at the rate which they claim. The Co-
ordinate Bench of this Court in the case of Karnataka State
Road Transport Corporation v. C.V. Venkataramana disposed
off on 16.04.2021, has held that the labour Court was not
justified in entertaining the application filed by the workman
under Section 33C(2) of ID Act on the ground that the
Management had not filed any application seeking approval
under Section 33(2)(b) of ID Act since the workman was
dismissed from service and the same was not challenged by
the workman in accordance with law. The said decision of
the learned Single Judge has been affirmed by the Division
Bench in Writ Appeal No.541/2021 wherein it is held as
under:
6. "We have considered the submissions
made on both sides and have perused the record.
The scope and ambit of Section 33C(2) of the Act is
well defined by catena of decisions. The Supreme
Court in MUNICIPAL CORPORATION OF DELHI
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Vs. GANESH RAZAK AND ANOTHER has held that
a workman can proceed under Section 33C(2) of the
Act only after the Tribunal has adjudicated a
complaint under Section 33(A) of the Act or on a
reference under Section 10 of the Act that the order
of discharge or dismissal was not justified and has
set aside the order and has reinstated the
workman. It has further been held that the nature
of proceeding under Section 33C(2) of the Act is in
the nature of an executive proceeding which pre-
supposesadjudication of the liability in respect of a
right which has to be enforced. Similar view has
been taken by the Supreme Court in CENTRAL
INLAND WATER TRANSPORT CORPORATION
LIMITED Vs. WORKMEN AND ANOTHER.
7. In the instant case, admittedly there is
no adjudication in respect of the order of
dismissal, that the same has been passed in
violation of Section 33(2)(b) of the Act. Similarly,
it is also not in dispute that the claim made by the
appellant in respect of his wages for a period from
08.03.2008 till 22.03.2014, there has been no
adjudication. The Corporation has disputed the
entitlement of the appellant to claim wages for the
aforesaid period by filing statement of objections.
Therefore, in the absence of any adjudication of
the right of the appellant to recover the amount in
question from the Corporation, the Labour Court
could not have adjudicated the liability in a
proceeding under Section 33C(2) of the Act and
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could not have passed the impugned order.
8. Sofar as reference made by the learned
counsel for the appellant on the decisions relied
upon by him is concerned, the same are an
authority for a proposition that in case an order of
dismissal is passed in violation of Section 33(2)(b)
of the Act, the same is void. However, it is trite
law that even a void order is required to be
challenged, otherwise it binds the parties.
The learned Single Judge has therefore
rightly quashed the order passed by the Labour
Court dated 24.11.2015."
The Co-ordinate Bench of this Court in the case of The
Chief Security & Vigilance Officer BMTC, Bengaluru v. M.
Venkataswamy Reddy in Writ Petition No.4344/2018 decided
on 14.07.2023, after considering the judgments of the
Hon'ble Apex Court in the case of Central Inland Water
Transport Corporation Ltd. v. The Workmen & another3 and in
Municipal Corporation of Delhi v. Ganesh Razak and another4
has held that the application filed under Section 33C(2) of ID
Act is not maintainable, as there is no adjudication of right
1974 (4) SCC 696
(1995) 1 SCC 235
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of the petitioner's claim and mere non approval in terms of
Section 33(2)(b) of ID Act does not give right to the
workman to file an application under Section 33C(2) of ID
Act. It is well settled that the workman can proceed under
Section 33C(2) of ID Act only after the Tribunal has
adjudicated on a complaint under Section 33A of ID Act or on
a reference under Section 10 that the order of discharge or
dismissal was not justified and has set aside the order and
reinstated the workman, as held by the Apex Court in
Ganesh Razak's case (supra) and that the proceedings under
Section 33C(2) of ID Act is a proceeding in the nature of
executing proceedings. The judgment relied upon by the
learned counsel for the workman in the case of Jaipur Zilla
Sahakari Bhoomi Vikas Bank Ltd. is not applicable to the
present case on hand since the judgments referred do not
relate to filing of application under sub-section (2) of Section
33C of ID Act.
12. The Labour Court not only awarded wages but
also awarded interest on delayed payment of wages. The
Co-Ordinate Bench of this Court in the case of The
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Management of NWKRTC Dharwad Division Vs. Shri
Shankrayya S/o Mallayya Virkthamath5 has considered
the award of interest on delayed payment in claim made
under Section 33-C(2) of the I.D.Act and has observed as
under:
14. The right to claim interest can be said to be a pre-
existing right or benefit, provided the terms and
conditions of contract of the employment between the
employer and employee is determined in the contract of
employment, or if it is determined in the Resolutions
governing service conditions. Admittedly, the terms and
conditions of contract of employment between the
employer and employee if any, are silent on payment of
interest on delayed service benefits. The Rules and
Regulations governing the service conditions between
the employer and employees also do not contemplate
the payment of interest in case of delay in paying the
interest to the employees.
15. This being the position, this Court is of the view
that the claim for interest cannot be termed as a claim
based on the pre-existing right or benefit within the
meaning of Section 33-C(2) of the I.D. Act, 1947.
16. It is also an admitted fact that there is no
adjudication by the competent authority or Industrial
Tribunal as to whether the employees are entitled to
interest on account of delayed payment. In addition to
that, there is no adjudication as to the rate of interest as
well. The rate of interest on account of delayed payment
depends on various factors. It is submitted by the
learned counsel for the petitioner-Corporation that
payment was delayed on account of Covid-19 pandemic
related restrictions.
In W.P. No.104870/2023 C/w other matters decided on 15.12.2023
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13. Accordingly, the application filed under Section
33C(2) of ID Act is not maintainable before the Labour Court
and hence, the point framed for consideration is answered
accordingly.
14. The learned counsel for the workman submits
that the proceedings are now pending before the learned
Additional District and Sessions Judge challenging the
dismissal of the respondent and he will work out his remedy
in the said proceedings.
15. For the aforesaid reasons, the Court proceeds to
pass the following order:
The writ petition is allowed. The impugned order
passed in Application No.25/2012 dated 21/05/2013 by the
Presiding Officer, Labour Court, Hubli, is hereby set aside.
Sd/-
JUDGE
kmv
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