Karnataka High Court
Karnataka State Road Transport ... vs State Of Karnataka on 5 March, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 63450 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 63450 OF 2016 (L-KSRTC)
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT CORPORATION
MANGALORE DIVISION,
MANGALORE BY ITS
DIVISIONAL CONTROLLER,
REP. BY ITS CHIEF LAW OFFICER.
...PETITIONER
(BY SMT. H.R. RENUKA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF LABOUR,
KARMIKA BHAVANA,
BANNERGHATTA ROAD,
BANGALORE - 560 029,
REP. BY LABOUR COMMISSIONER.
2. N.B. SHANKAR S/O LATE BETTAIAH,
AGED ABOUT 56 YEARS,
R/O A.K. COLONY,
Digitally NUGGEHALLI TOWN,
signed by A K NUGGEHALLI HOBLI,
CHANDRIKA
CHANNARAYAPATNA TALUK,
Location: HASSAN DISTRICT - 573 131.
HIGH COURT
OF ...RESPONDENTS
KARNATAKA
(BY SMT. SPOORTHI U., HCGP FOR R1;
SRI. V.S. NAIK, ADCOVATE FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION.
QUASH THE ORDER PASSED BY THE R-1 DATED: 14.11.2016 VIDE
ANNEXURE-Y AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 63450 of 2016
ORDER
The petitioner, Karnataka State Road Transport
Corporation (for short 'the Corporation') is before this
Court under Article 226 of the Constitution of India,
questioning the correctness and legality of order dated
14.11.2016 bearing No.IAA-2/CR-35/2013-14 (Annexure-
Y) passed under Section 29 of the Industrial Disputes Act,
1947 (for short '1947 Act') granting permission to initiate
prosecution against the petitioner-Management.
2. Heard Smt. H.R.Renuka, learned counsel for the
petitioner and Smt. Spoorthy.V., learned HCGP for
respondent No.1 as well as Sri. V.S.Naik, learned counsel
for respondent No.2. Perused the writ petition papers as
well as original records.
3. Smt. H.R.Renuka, learned counsel for the
petitioner would submit that respondent No.2 was working
in the petitioner-KSRTC as badli conductor and his services
were confirmed on 20.01.1984. After an enquiry,
respondent No.2-workmen was dismissed from services by
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order dated 13.12.2005. Respondent No.2 raised dispute
challenging the order of dismissal in IDR.No.4/2008. By
award dated 20.05.2011, order of dismissal was set aside
directing reinstatement with 50% back wages with
continuity of service and consequential benefits. The
petitioner-KSRTC challenged the said award before this
Court in W.P.No.17148/2012 and respondent No.2-
workmen also challenged the said award insofar as denial
of 50% back wages in W.P.No.22877/2012. Learned Single
Judge by order dated 17.09.2012, dismissed the writ
petition of respondent No.2-workmen and partly allowed
the writ petition of the petitioner-KSRTC denying the
workmen 50% back wages granted by the Labour Court.
Learned counsel would submit that in the meanwhile, by
letter dated 13.11.2012 (Annexure-B), the petitioner-
KSRTC called upon respondent No.2 to furnish certain
documents within seven days so as to implement the
award. Though the respondent No.2 failed to produce
documents, by letter dated 26.11.2012, the petitioner-
KSRTC posted respondent No.2 to work at Mangaluru
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Depot-1. As respondent No.2 failed to report to duty, Final
Call Notice dated 18-20/3/2013 (Annexure-D) was issued
calling upon respondent No.2 to report to duty, failing
which, further action would be taken. Respondent No.2
received the same and acknowledgment for having served
the same is placed on record at Annexure-D1. Respondent
No.2 replied by his letter dated 22.03.2013 (Annexure-E)
stating that he would report to duty within one week. As
respondent No.2 failed to report to duty, the petitioner-
KSRTC issued Final Call Notice dated 24-26/4/2013
(Annexure-G) calling upon respondent No.2 to report to
duty within three days and informed him that if he fails to
report to duty, his name would be removed from the staff
list of the Corporation, which was also received by
respondent No.2. As respondent No.2 failed to report to
duty, the petitioner-KSRTC under order dated 11.06.2013
forfeited the right of respondent No.2 to join duty with the
petitioner-KSRTC and also removed his name from the list
of its employees.
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4. It is stated that respondent No.2 submitted
representation to respondent No.1 complaining non-
implementation of the award. Based on the complaint of
respondent No.2, Annexure-N, show-cause notice dated
31.10.2013 was issued to the petitioner calling upon the
petitioner to explain as to why the petitioner-KSRTC shall
not be prosecuted under Section 29 of the Industrial
Disputes Act, 1947 (for short '1947 Act') for violation of
Sections 17A, 18 and 19 of the 1947 Act. The petitioner-
KSRTC submitted its reply vide Annexure-P dated
21.11.2013 and Annexure-Q dated 18.07.2014. Thereafter
one more notice dated 24.11.2014 was issued by
respondent No.1, to which, the petitioner submitted
detailed reply in terms of Annexure-S dated 02.12.2014.
Learned counsel for the petitioner would submit that in the
meanwhile, W.A.No.6994/2012 filed by respondent No.2
insofar as denial of back wages was disposed of by
judgment dated 24.04.2014 as there was mistake
apparent on the judgment, the petitioner-KSRTC filed
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Review Petition No.520/2014, which was allowed and
judgment in writ appeal was clarified.
5. Learned counsel Smt. H.R.Renuka would further
contend that the order that would be passed under Section
29 of the 1947 Act would have serious consequence. Since
it would have serious consequence, the Authority while
considering complaint under Section 29 of the 1947 Act,
shall have to apply its mind and shall have to record a
specific finding with regard to breach alleged and
committed by the Management. Learned counsel would
further submit that respondent No.1 under impugned
order has failed to record a finding with regard to breach
committed by the petitioner-KSRTC. Unless nature of
breach and extent of breach is recorded, the Authority
would not get jurisdiction to grant permission for
prosecution. In the instant case, learned counsel would
submit that there is no breach and on the other hand, the
petitioner-KSRTC has taken all steps to implement the
award. Respondent No.2 though received call letters,
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failed to report to duty, which ultimately resulted in
forfeiting his right to join duty. Learned counsel further
submits that respondent No.1, during the course of its
order has noted that the Corporation has failed to
implement the award and there is a delay tactic in
implementing the award. Learned counsel would submit
that there is no delay in taking action and implementing
award and moreover, it is submitted that during the
pendency of the writ appeal itself, the petitioner-
Corporation took action to implement the award. Learned
counsel would submit that as there is no finding with
regard to breach committed by petitioner-KSRTC, same
requires interference. Thus, she prays for allowing the writ
petition.
6. Per contra, learned counsel Sri.V.S.Naik would
support the order passed by first respondent and would
submit that petitioner-KSRTC has no right to forfeit the
right of second respondent to join duty with petitioner-
KSRTC. Learned counsel would submit that no notice
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whatsoever is issued before forfeiting the right of joining
duty. Learned counsel would submit that petitioner-KSRTC
has committed breach of the award dated 20.05.2011.
Learned counsel would submit that first respondent taking
note of the entire facts and referring to the documents
placed on record has come to the conclusion that there is
breach on the part of petitioner-KSRTC and has rightly
granted permission to prosecute petitioner-KSRTC.
Learned counsel places reliance on the decision of the
Division Bench of this Court, decided on 02.04.1990 in
W.P.NO.13129/1982 (F.K.MENZLIN VS.
B.P.PREMAKUMAR) to contend that if the petition
challenging the order of prosecution is interfered, then it
would lead to delay in prosecution and it would also lead
to delay in implementation of settlement or award. He
further submits that it is open for the petitioner-KSRTC to
take all contentions including the ground that sanctioning
authority has accorded sanction without application of
mind before the Court where prosecution is launched.
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Thus, learned counsel would pray for dismissal of the writ
petition.
7. Having heard the learned counsel appearing for
the parties and on perusal of the writ petition papers, I am
of the view that first respondent failed to record the nature
and extent of breach committed by the petitioner-KSRTC
under impugned order dated 14.11.2016 passed under
Section 29 of the 1947 Act.
8. Section 29 of 1947 Act could be invoked where
there is breach of any terms of settlement or award and if
such breach is established, any person committing such
breach shall be punishable with imprisonment for a term
which may extend to six months, or with fine or with both.
Section 29 of 1947 Act reads as follows:
"29. Penalty for breach of settlement or
award.-- Any person who commits a breach of any
term of any settlement or award, which is binding
on him under this Act, shall be punishable with
imprisonment for a term which may extend to six
months, or with fine, or with both, (and where the
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breach is a continuing one, with a further fine which
may extend to two hundred rupees for every day
during which the breach continues after the
conviction for the first) and the Court trying the
offence, if it fines the offender, may direct that the
whole or any part of the fine realised from him shall
be paid, by way of compensation, to any person
who, in its opinion, has been injured by such
breach."
A reading of the above provision would makes it further
clear that a breach may be a continuing breach or breach
already committed by such person. Granting permission
for prosecution would have a serious consequence on such
a person. In that circumstance, Authority which grants
permission for prosecution has greater responsibility.
Order under Section 29 of 1947 Act cannot be passed
lightly. The Authority which considers complaint under
Section 29 of 1947 Act shall have to apply its mind and
shall have to record its finding with regard to breach or
continuing breach. Unless specific breach or continuing
breach is recorded on the complaint after considering the
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objections if submitted, the Authority would not get
jurisdiction to grant permission for prosecution.
9. In the instant case, first respondent failed to
record the nature and extent of breach committed by
petitioner-KSRTC with regard to award dated 20.05.2011.
The first respondent merely stated that petitioner-KSRTC
has violated Sections 17A, 18 and 19 of 1947 Act. What is
the breach is to be specifically stated and finding is to be
recorded with regard to breach of award. How petitioner-
KSRTC has violated Sections 17A, 18 and 19 of 1947 Act is
not recorded. When second respondent stated that award
is not implemented and when petitioner-KSRTC has filed
its objection taking specific plea that in spite of call letters,
and passing order, second respondent has not reported to
duty and when it has passed order dated 11.06.2013
forfeiting the second respondent's right to join, first
respondent ought to have considered how direction issued
under Award dated 20.05.2011 is violated or how the
petitioner-KSRTC has breached the terms of the Award. In
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the absence finding with regard to breach committed by
petitioner-KSRTC, first respondent could not have granted
permission under Section 29 of 1947 Act for prosecution.
Learned counsel for the respondent placed reliance on the
decision in F.K.MENZLIN (supra) to contend that sanction
order could not be interfered under Article 226 of the
Constitution of India and party could agitate before the
Court during the course of prosecution the grounds urged
herein. The facts of the present case and the facts in
F.K.MENZLIN (supra) are entirely different. In
F.K.MENZLIN (supra), material was placed on record and
order of sanction referred to the relevant material. In the
instant case, materials are not placed on record and the
Authority granting sanction has not recorded the finding
with regard to breach or violation of the Award in
question. Hence, the following:
ORDER
i) Writ petition is allowed.
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ii) Impugned order bearing No.IAA-
2/CR-35/2013-14 (Annexure-Y)
dated 14.11.2016 passed by first
respondent is set aside.
iii) Matter is remitted back to first
respondent for fresh consideration in
accordance with law, in the light of
the observations made above, as
expeditiously as possible.
Sd/-
JUDGE
SMJ,NC
CT:SNN
