Karnataka High Court
T Srinivasa vs The Chief Traffic Manager on 10 February, 2025
Author: K.Somashekar
Bench: K.Somashekar
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WA No. 2984 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
WRIT APPEAL NO.2984 OF 2014 (L-KSRTC)
BETWEEN:
T. SRINIVASA
SON OF LATE THIMMAIAH
AGED ABOUT 38 YEARS
RESIDING AT SAPTHAGIRI LAYOUT
SHAMARAO ROAD, 9TH CROSS
TUMKUR - 572 201
...APPELLANT
(BY SRI SHEKAR L., ADVOCATE)
AND:
THE CHIEF TRAFFIC MANAGER
B.M.T.C.
CENTRAL OFFICE, K. H. ROAD
BANGALORE - 560 027.
Digitally signed by
MOUNESHWARAPPA ...RESPONDENT
NAGARATHNA
Location: HIGH (BY SMT. H. R. RENUKA, ADVOCATE)
COURT OF
KARNATAKA
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED BY THE LEARNED SINGLE JUDGE IN THE WRIT PETITION
NO. 19520/2011 C/W WRIT PETITION NO. 41137/2010 DATED
14/7/2011.
THIS WRIT APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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WA No. 2984 of 2014
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)
This appeal is directed against the order dated
14.07.2011 passed by the learned Single Judge in
W.P.No.19520/2011 (L-KSRTC) connected with
W.P.No.41137/2010 (L-KSRTC).
2. Sri. Shekar L., learned counsel appearing for
appellants and Smt. H. R. Renuka, learned counsel appearing
for respondents are present before the Court physically.
3. Perused the order rendered by the learned Single
Judge.
4. The factual matrix of the appeal are as under :
The appellant - T. Srinivasa was working as Junior
Assistant on the establishment of the respondent/K.S.R.T.C.
On allegation of unauthorized absence, the
respondent/K.S.R.T.C., dismissed the appellant from service
vide order dated 30.07.2007. As on the date of dismissal, a
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dispute was raised by the K.S.R.T.C. Staffs and Workers'
Federation regarding charter of demand in I.D.No.148/2005,
pending adjudication on the file of the Presiding Officer,
Industrial Tribunal, Bengaluru. The appellant being the
concerned workman of that dispute, the respondent did not file
any approval application as required under Section 33 (2)(b) of
the Industrial Disputes Act, 1947 (for short 'ID Act'). Hence, it
is the contention that the order of dismissal is nonest and void
ab initio. The Hon'ble Supreme Court in the case of JAIPUR
ZILLA SAHAKARI BHOOMI VIKAS BANK LTD., VS.
RAMGOPAL SHARMA 2002-I LLJ Page 834 has held that, in
view of non-filing of approval application, the order of dismissal
is nonest in the eye of law. Filing of an application under
section 33(2)(b) is mandatory on the part of the respondent
while passing the order of dismissal. The respondent was very
much aware that the dispute raised by the Union was pending
adjudication as on the date of dismissal of the appellant from
service. In view of the law declared by the Hon'ble Supreme
Court, it is contended that the order of dismissal is nonest.
Hence, the learned counsel for the appellant presses into
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service for consideration of aforesaid judgment rendered by the
Hon'ble Supreme Court.
5. It is urged in the grounds of the writ appeal that the
appellant had not taken any plea regarding violation of Section
33(2)(b) of the ID Act and a dispute was raised by the
K.S.R.T.C. Staffs and Workers' Union regarding charter of
demand.
6. Learned counsel for the appellant has facilitated the
following list of authorities, in support of his case:
"1. Jaipur Zilla Sahakari Bhoomi Vikas Bank
Ltd., vs Ramgopal Sharma and others reported in
2002 (1) LLJ page 834.
2. New Motors (Private) Ltd., vs Morris(KT)
reported in 1961 LLJ page 551.
3. Pradeep Phosphates Ltd. vs Sankar Das and
another reported in 2012 (1) LLJ Ori 519.
4. Top Security Ltd., vs Subhas Chander Jha
and another reported in 2012-iv LLJ DELHI 542.
5. Engineering Laghu Udyog Employees Union
vs Judge, Labour court and Industrial Tribunal
reported in 2004-I SC 1105.
6. Chief Traffic Manager, BMTC rep. by the
Chief Law Officer, BMTC, Bangalore vs M.Narayana
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Reddy, S/o Munireddy reported in 2013-iii LLJ KANT
80."
7. Apart from the list of authorities as facilitated by
the learned counsel for the appellant, learned counsel has
taken us through the grounds urged in this appeal seeking
intervention of the order rendered by learned Single Judge.
8. Learned counsel for the appellant has filed
I.A.No.2/2014 seeking condonation of delay of 1202 days in
filing the writ appeal. This application is appended with an
affidavit of appellant - T. Srinivasa.
9. Learned counsel for the respondent/Bengaluru
Metropolitan Transport Corporation vehemently opposes the
said application and has also filed statement of objections to
the said application. It is contended that in the present case,
the workman raised the plea of not taking approval and the
same has been rejected by the learned single judge as the
workman had not raised this plea before the labour court.
Further the workman remained silent from the year 2011
without even questioning the order of the learned single judge
which was decided on merits and by taking into consideration
the long absence of the workman. The corporation has not
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settled any cases similar to the case of the appellant inasmuch
as the writ petition has been disposed of on 14.07.2011 and
the appeal has been filed on 27.11.2014 where there is an
inordinate delay of nearly four years in filing the appeal. The
workman has not discharged work from 2005 and has remained
silent for a period of four years is not entitled for any relief as
he has exhibited his negligence and dereliction in discharging
his duty. Hence, it is prayed that the application for
condonation of delay inclusive of the appeal be dismissed.
10. Paragraph No.3 of the aforesaid application reads as
under:
"It is submitted that in the meantime the
respondent come forward to settle all the cases of
dismissal passed by the Disciplinary Authority during
the pendency of the proceedings in ID 148/2005
before the Industrial Tribunal, Bangalore. The
respondent settled almost all the cases of violation
u/s 33(2)(b) pending before the various courts. The
appellant under the impression that if the dispute
pending, the respondent consider his case also for
settlement, hence he filed complaint u/s 33A. Since
the respondent took a contention that the complaint
filed by the appellant is attracting resjudicata, the
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appellant is filed this appeal. Hence there is a delay
of 1202 days."
11. Keeping in view the provisions of law, it is deemed
appropriate to refer to Section 11 of Code of Civil Procedure (for
short 'CPC'), which reads as under:
"11. Res judicata
No court shall try any suit or issue in which the
matter directly and substantially in issue has been
directly and substantially in issue in a former suit
between the same parties, or between parties under
whom they or any of them claim, litigating under the
same title, in a court competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and
finally decided by such court."
12. Section 115 of the Indian Evidence Act, 1872 (for
short 'Act'), which reads as under:
"115. Estoppel.- When one person has, by his
declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be
true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or
proceeding between himself and such person or his
representative, to deny the truth of that thing."
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13. Keeping in view of the aforesaid provisions of law, the
appellant is neither diligent nor vigilant to file this application
seeking condonation of delay and also for seeking intervention
of the order passed by the learned Single Judge.
14. It is relevant to refer to paragraph No.16 of the order
dated 19.06.2023 passed by the Presiding Officer, Industrial
Tribunal, Bengaluru in Complaint No.01/2013, which reads as
under :
"16. In this case, there is no explanation on
behalf of the complainant for filing the complaint on
04.01.2013 with respect to the order dated
30.07.2007 i.e., after lapse of 6 years. Hence, I
have inferred that the complainant is entitle for the
relief as per Section 33-A of I.D. Act with effect from
04.01.2013 only. Hence, I answer points 1 and 2 in
the affirmative and pass the following;
AWARD
The complaint filed under Section 33-A of I.D.
Act by the complainant with respect to the order
dated 30.07.2007 on 04.01.2013 is partly allowed in
the following terms.
In view of non compliance of Section 33(2)(b)
of I.D. Act, with effect from 04.01.2013 the
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dismissal order dated 30.07.2007 is hereby set
aside.
The complainant is entitled for consequential
relief with effect from 04.01.2013 only."
15. Learned Single Judge has referred to the judgment
rendered by the Hon'ble Supreme Court in the case of STATE
OF BIHAR Vs. KAMESHWAR PRASAD SINGH reported in
(2000) 9 SCC 94. So also is the tenor of the law in STATE OF
UTTARANCHAL Vs. ALOK SHARMA reported in 2009(7) SCC
647(C). In fact, in the case of GURUSHARAN SINGH Vs.
NEW DELHI MUNICIPAL COMMITTEE reported in AIR 1996
SC 1175 at paragraph No.9, the Supreme Court reiterated
that, neither Article 14 of the Constitution conceives within the
equality clause this concept nor Article 226 empowers the High
Court to enforce such claim of equality before law.
16. Paragraph No.12 of the order dated 14.07.2011
passed by the learned Single Judge in WP.Nos.19520/2011 c/w
41137/2010 indicates that the order dated 30.07.2007 of
termination from service was during the pendency of ID
148/2005 before the Industrial Tribunal, Bangalore, wherein
the petitioner was a workman concerned and in the absence of
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approval of the termination as required by Section 33(2)(b) of
the ID Act, the order of termination is void ab intio, deserves
rejection and also made an observation that keeping in view
the contention made by learned counsel for the parties and also
referring the judgment in the case of SURYA DEV RAI Vs.
RAM CHANDER RAI reported in 2003(3) KLT 490, the
Supreme Court considering the nature of jurisdiction under
Article 226 and 227 of the Constitution of India held thus:
"Supervisory jurisdiction under Article 227
of the constitution is exercised for keeping
the subordinate courts within the bounds of
their jurisdiction. When the subordinate
court has assumed a jurisdiction which it
does not have or has failed to exercise a
jurisdiction which it does have or the
jurisdiction though available is being
exercised by the court in a manner not
permitted by law and failure of justice or
grave injustice has occasioned thereby, the
High Court may step in to exercise its
supervisory jurisdiction."
17. Perused paragraph No.13 of the order dated
14.07.2011 passed by the learned Single Judge in
WP.Nos.19520/2011 c/w 41137/2010 relating to the judgment
rendered by the Hon'ble Supreme Court in the case of
MAHINDRA AND MAHINDRA LTD Vs. N. B. NARAWADE
reported in (2005) 3 SCC 134.
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18. Keeping in view the aforesaid provisions of law and
judgments rendered by the learned Single Judge and the
reasons stated in the affidavit accompanying the application,
the delay application would not survive for consideration.
19. Consequently, the application I.A.No.2/2014 filed for
condonation of delay is hereby dismissed.
20. In view of the dismissal of the delay application,
there is no consequence to consider the prayer urged in this
appeal. Hence, the appeal is also hereby dismissed.
21. Consequence upon the dismissal of this appeal, any
pending applications also stand dismissed.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
PHM
