Karnataka High Court
Sri K .V.Subbarathna Setty vs Karnataka State Road Transport on 3 March, 2025
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WA No. 654 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WRIT APPEAL NO. 654 OF 2024 (L-KSRTC)
BETWEEN:
SRI K.V.SUBBARATHNA SETTY,
S/O LATE SRI VENKATARSHAMAIAH,
AGED ABOUT 80 YEARS,
R/AT NO 22/51, 8TH CROSS,
3RD MAIN ROAD, TENT ROAD,
SANJEEVININAGAR,
NAGARABHAVI POST,
BENGALURU-560072.
REPRESENTED BY GENERAL SECRETARY,
KSRTC AND BMTC UNITED EMPLOYEES' UNION,
NO.23, 4TH MAIN ROAD,
Digitally MATHIKERE EXTENSION,
signed by K G
BANGALORE-560054.
RENUKAMBA
...APPELLANT
Location: (BY SRI. SOMA SUNDER RAO R, ADVOCATE)
High Court of
Karnataka
AND:
1. KARNATAKA STATE ROAD TRANSPORT
CORPORATION,
BENGALURU CENTRAL DIVISION,
BENGALURU BY ITS DIVISIONAL CONTROLLER,
REPRESENTED BY ITS CHIEF LAW OFFICER.
2. STATE OF KARNATAKA,
DEPARTMENT OF LABOUR,
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WA No. 654 of 2024
PRESIDING OFFICER,
NO.5, LABOUR STATE INSURANCE SCHEME
MEDICAL SERVICES,
OFFICE OF THE SECRETARIAT,
VIKASA SOUDHA,
BENGALURU-560001.
...RESPONDENTS
(BY SMT. RENUKA H R, ADVOCATE FOR R1;
SMT. SARITHA KULKARNI, AGA FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER
DATED 01.02.2024 IN WRIT PETITION No.20255/2021
(L-KSRTC) PASSED BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT, ETC.
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE T.M.NADAF
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)
The challenge in this appeal is to an order dated
01.02.2024 passed by the learned Single Judge in
WP No.20255/2021, whereby the learned Single Judge has
allowed the writ petition filed by respondent No.1 herein
challenging the award dated 25.10.2019 of the Industrial
Tribunal in ID No.102/2011.
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2. The appellant herein while working as a conductor,
was imposed with a punishment of reducing his basic pay
by one increment for a period of six months vide order
dated 07.03.1991. He attained the age of superannuation
in the year 2004. He challenged the order dated
07.03.1990 by raising an industrial dispute in the year
2005, which dispute was finally referred to the Industrial
Tribunal vide reference dated 15.02.2011 by the
appropriate Government. The English translation of the
reference is in the following terms:
"1. Divisional Controller, KSRTC Bangalore Central
Division, Bangalore of Administrative Board has
imposed penalty to Sri K V Subbarathna Shetty
Conductor 64 years. Whether it is lawful to that said
applicant has raised the issue after 19 years without
informing the reason for delay?
2. Whether it is lawful to non cumulatively reduce
the next 1 annual pay increment of Sri KB
Subbarthna Shetty Conductor, 64 years represented
by General Secretary, KSRTC & BMTC United
Employees Union, Matikere Extension Bangalore for
6 months and Whether it is lawful that he is not
eligible for any pay increment during the said period
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as per the Order No; KST/BNG/EST/420/7805/90-91
dated: 07-03-1990 by Divisional Controller, KSRTC
Bangalore Central Division Bangalore of
Administrative Board?
3. If not said labour is eligible for what relief?"
3. The Industrial Tribunal answered the reference in
favour of the appellant herein by giving findings in the
following manner:
"17. In view of my findings on point No.1 and
2, I pass the following:
AWARD
The claim statement filed by the first party is
allowed.
Point No.1 of the reference referred by the
Government under Section 10(1)(d) of I.D.Act is
hereby answered in affirmative holding that the first
party is justified in raising the dispute after lapse of
19 years from the date of punishment order
07.03.1991.
Point No.2 of the reference is answered holding
that the second party is not justified in reducing the
basic pay of the workman
Sri.K.V.Subbarathnashetty, by one ensuing annual
increment for a period of 6 months and dis-entitling
him for any increment during the said period vide
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punishment order dated 07.03.1991. The said
punishment order dated 07.03.1991 is set aside.
The first party workman is entitled for all the
reliefs in view of setting aside the said punishment
order dated 07.03.1991.
Send Copy of this Award to the Government for
publication.
The Government is directed to publish the
award in such manner as it thinks fit within a period
of 30 days from the date of receipt of the same.
The award shall become enforceable on the
expiry of 30 days from the date of its publication
under Section 17 of the I.D.Act 1947.
The Government is directed to intimate the
publication of award to all the parties to the case by
registered post acknowledgement due, without fail."
4. The grounds on which the writ petition had been
filed by the respondent nol.1 includes, the appellant herein
had not questioned the order of punishment, as such the
appellant cannot seek a reference with respect to
punishment order separately. It was also the case of
respondent No.1, that the reference itself was belated and
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the order of the Industrial Tribunal condoning the delay
without any proper application is bad.
5. On the other hand, the case of the appellant was,
the appropriate Government has rightly referred the
industrial dispute to the Industrial Tribunal for
adjudication. No prejudice has been caused to respondent
No.1 as the records were required to be kept in order,
even after a lapse of time. This stand is primarily made
against the stand of the respondent No.1 that records
have been destroyed. The learned Single Judge has set
aside the findings of Industrial Tribunal in paragraphs No.6
to 8, which we have already reproduced.
6. The submission of Sri. Somasunder Rao.R, learned
counsel for the appellant is that, the Tribunal has clearly
erred in setting aside the award passed by the Industrial
Tribunal. According to him, the reference is not belated in
as much as the appeal filed by the appellant against the
order of punishment was not considered as the same was
not replied to and the appellant was waiting for a reply on
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the departmental appeal submitted by him. It is only after
his retirement he has raised the industrial dispute. This is
a proper explanation for the delay and laches and the
Industrial Tribunal has rightly condoned it.
7. We are not in agreement with the submission
made by Sri. Rao for the simple reason that the
punishment order having been passed in the year 1990,
raising of an industrial dispute after 15 years was highly
belated. That apart, there is no proper explanation as to
what prevented the appellant to raise an industrial dispute
immediately after the passing of the punishment order. In
the absence of proper explanation, we are of the view that
the learned Single Judge has rightly allowed the writ
petition filed by the respondent herein. This we say so in
view of the judgment of the Supreme Court in the case of
Prabhakar -Vs.- Joint Director, Sericulture
Department and Anr. [(2015) 15 SCC 1], wherein in
paragraphs No.42.1 to 42.3, has stated as under:
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"42.1. An industrial dispute has to be referred
by the appropriate Government for adjudication and
the workman cannot approach the Labour Court or
Industrial Tribunal directly, except in those cases
which are covered by Section 2-A of the Act.
Reference is made under Section 10 of the Act in
those cases where the appropriate Government
forms an opinion that "any industrial dispute exists
or is apprehended". The words "industrial dispute
exists" are of paramount importance, unless there is
an existence of an industrial dispute (or the dispute
is apprehended or it is apprehended such a dispute
may arise in near future), no reference is to be
made. Thus, existence or apprehension of an
industrial dispute is a sine qua non for making the
reference. No doubt, at the time of taking a decision
whether a reference is to be made or not, the
appropriate Government is not to go into the merits
of the dispute. Making of reference is only an
administrative function. At the same time, on the
basis of material on record, satisfaction of the
existence of the industrial dispute or the
apprehension of an industrial dispute is necessary.
Such existence/apprehension of industrial dispute,
thus, becomes a condition precedent, though it will
be only subjective satisfaction based on material on
record. Since, we are not concerned with the
satisfaction dealing with cases where there is
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apprehended industrial dispute, discussion that
follows would confine to existence of an industrial
dispute.
42.2. Dispute or difference arises when one
party makes a demand and the other party rejects
the same. It is held by this Court in a number of
cases that before raising the industrial dispute
making of demand is a necessary precondition. In
such a scenario, if the services of a workman are
terminated and he does not make the demand
and/or raise the issue alleging wrongful termination
immediately thereafter or within reasonable time and
raises the same after considerable lapse of period,
whether it can be said that industrial dispute still
exists.
42.3. Since there is no period of limitation, it
gives right to the workman to raise the dispute even
belatedly. However, if the dispute is raised after a
long period, it has to be seen as to whether such a
dispute still exists? Thus, notwithstanding the fact
that law of limitation does not apply, it is to be
shown by the workman that there is a dispute in
praesenti. For this purpose, he has to demonstrate
that even if considerable period has lapsed and there
are laches and delays, such delay has not resulted
into making the industrial dispute cease to exist.
Therefore, if the workman is able to give satisfactory
explanation for these laches and delays and
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demonstrate that the circumstances disclose that
issue is still alive, delay would not come in his way
because of the reason that law of limitation has no
application. On the other hand, if because of such
delay dispute no longer remains alive and is to be
treated as "dead", then it would be non-existent
dispute which cannot be referred."
(Emphasis Supplied)
8. Though the Industrial Tribunal has referred to the
judgment of the Supreme Court in Raghubir Singh -Vs.-
General Manager, Haryana Roadways, Hissar
[(2014) 10 SCC 301], the same was considered by the
Supreme Court in its latest judgment Prabhakar (Supra)
referred to above and the same has been distinguished by
the Supreme Court in paragraph No.27, which we
reproduce as under:
"25) In Raghubir Singh v. General Manager,
Haryana Roadways, Hissar 16, this Court scanned
through most of the available case law on the subject
and emphasized that the words 'at any time'
occurring in Section 10 of the Act would imply that
law of limitation did not apply. On facts, the Court
held that the State Government had rightly exercised
its power and referred the dispute to Labour Court
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within reasonable time considering circumstances in
which the appellant therein was placed. In fact, the
Court accepted the explanation for delay given by
the workman 16 (2014) 10 SCC 301 in raising the
dispute. In that case, it was found that there was a
criminal case pending against the workman and
further the Management had assured him that he
would be reinstated on his acquittal. It was also
noticed that even despite delay, there was no loss or
unavailability of evidence due to the said delay."
9. Whereas in the case in hand, the Industrial Tribunal
has, on point No.1, in paragraph No.16, held as under:
"16. Learned counsel for the first party has also
relied on the decision of Hon'ble High Court of
Karnataka in W.P.No.29043/2015(S-KSRTC) dated
08.03.2018 wherein Their Lordships have held that
Regulation 22 of KSRTC Servants (C&D) Regulation
1971 was not followed and allowed the Writ Petition
filed by the petitioner in the said case with regard to
hear on enquiry by the writ petitioner. The
allegations made against the first party workman
and the punishments were issued to him on the
charges without holding enquiry. In the said case,
law recognises for issuance of charge sheet after
framing the charges, it mandates on the part of the
second party management to hold enquiry against
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the erred officials whether he has committed
misconduct or not. Without the enquiry report, the
punishments were passed against him behind his
back which hits the principles of natural justice. In
the present case, no choice to conduct the defence
by the official who committed misconduct as alleged
in the charge sheel. Therefore it cannot be held that
there is a delay in raising the dispute as he was
unaware of the punishment order. In the case
between Raghubeer Singh Vs General Manager,
Haryana Roadways, Hissar, reported in (2014) 10
SCC 301, Their Lordships have observed that the
dispute could be adjudicated upon despite delay
since there was no loss or unavailable of evidence
due to delay. Further more, Their Lordships have
held that the workman cannot be denied relief only
on the ground of delay in raising the dispute.
Therefore the delay in raising the dispute is hereby
condoned as principles of natural justice was not
followed in the present case without giving an
opportunity to the first party workman before
passing the punishment order."
10. The aforesaid conclusion of the Industrial
Tribunal is not a proper reasoning on the delay that has
occurred for the appellant to raise an industrial dispute. It
follows that, the reference made after almost 20 years is
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bad. Moreover it is the case of respondent no.1, that the
records have been destroyed.
11. In view of our discussion above, we agree with
the final conclusion arrived at by the learned Single Judge
in the impugned order.
12. We do not see any merit in the appeal and the
same is dismissed.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
PA
