IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF AUGUST 2017 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.9654/2017 (L-KSRTC) BETWEEN:
THE DIVISIONAL CONTROLLER N.E.K.R.T.C., GULBARGA DIVISION-I, GULBARGA, HEREIN REPRESENTED BY THE CHIEF LAW OFFICER, N.E.K.R.T.C., CENTRAL OFFICES, SARIGE SADANA, GUBARGA. 585101 (BY SRI. SANJEEV B L, ADV.) AND ... PETITIONER SRI ISMAIL KHAN S/O AHMED MULLA KHAN, AGED ABOUT 29 YEARS, SECURITY GUARD, MAZIL H, NO.11-1041/495, MSK MILL, GALIB COLONY, GULBARGA 585101 ... RESPONDENT (RESPONDENT SERVED, UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE PROCEEDINGS OF THE INDUSTRIAL TRIBUNAL, BANGALORE PERTAINING TO SL. APPLICATION NO.76/2013, WHICH HAS CULMINATED IN ITS ORDER DTD.11.4.2016 VIDE ANNEX-B AND QUASH THE ORDER DTD.11.4.2016 PASSED BY THE INDUSTRIAL TRIBUNAL, BANGALORE VIDE ANNEX-B AND ALLOW THE SAID APPLICATION.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner-Corporation filed the present writ petition seeking a writ of certiorari to quash the order dated 11.4.2016 passed by the Industrial Tribunal, Bangalore in Serial Application No.76/2013 (In ID No.148/2005).
2. It is the case of the petitioner that respondent was working as Security Guard at Kalagi Depot under the petitioner-Corporation and he remained absent from 20.1.2012 to 11.1.2013 and pursuant to the report from the Depot Manager, the Disciplinary Authority issued an article of charges to the respondent for which he did not file any reply. Therefore, the Disciplinary Authority decided to hold an enquiry to find out the truth of the charges leveled against him and in this regard, appointed an Enquiry Officer. The Enquiry Officer conducted the enquiry strictly under the C & D Regulations of the Corporation after following the principles of natural justice. Though notice was issued, he failed to participate in the enquiry. Based on the oral and documentary evidence on record, he submitted the findings to the Disciplinary Authority holding that the charges leveled against the respondent are proved.
3. The Disciplinary Authority, on an independent assessment of the facts, circumstances and evidences on record held that the respondent was guilty of charges. Accordingly, the Disciplinary Authority by an order dated 11.1.2013 dismissed the respondent from services. After sending a cheque of Rs.11,374/- towards one month’s wages along with the copy of the dismissal order to the respondent, the petitioner sent an application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred to as ‘Act’) to the Industrial Tribunal Bangalore through registered post seeking approval of the order passed against the respondent. Before the Tribunal, the respondent was placed exparte. The petitioner in order to establish his case examined AW-1 and got marked documents as Ex.A-1 to A-3. The Tribunal considering the entire materials on record by the impugned order dated 11.4.2016 dismissed the application filed by the petitioner under the provisions of Section 33(2)(b) of ID Act. Hence, the present writ petition is filed.
4. The respondent is served, but remained unrepresented.
5. I have heard the learned counsel for the petitioner.
6. Sri.Sanjeev.B.L., learned counsel for the petitioner has contended that the impugned order passed by the Tribunal rejecting the application filed by the petitioner under the provisions of Section 33(2)(b) of the Act is erroneous and contrary to the facts and circumstances of the case. He further contended that the Tribunal having held that the petitioner satisfies two conditions enumerated under Sections 33(2)(b) of the Act is not justified in dismissing the application on the ground that the application sent on 12.1.2013 i.e., the next day of the date of dismissal does not satisfy the third condition enumerated in Section 33(2)(b) of the Act. In support of his contention, he sought to rely on the decision of the Hon’ble Supreme Court in the case of Calcutta State Transport Corporation v. Md. Noor Alam [(1974) 3 SCC 70] and contended that the difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction, no hard and fast rule can be laid down in these matters and each case must be decided on its own facts. Therefore, he sought to allow the writ petition.
7. Having heard the learned counsel for the petitioner, it is not in dispute that the respondent was working as a security guard at Kalagi Depot under the petitioner-Corporation and he remained absent from 20.1.2012 to 11.1.2013 and therefore, enquiry was initiated and the Enquiry Officer was appointed. Even before the Enquiry Officer, the respondent remained absent. Based on the material on record, the Enquiry Officer submitted the report holding that the charges leveled against the respondent are proved. Considering the entire materials on record and after following the procedure as contemplated, the petitioner has dismissed the respondent from services on 11.1.2013 and on the same day sent a cheque of Rs.11,374/- towards one month’s wages along with the copy of the dismissal order to the respondent and the petitioner sent an application under Section 33(2)(b) of the Industrial Disputes Act to the Industrial Tribunal, Bangalore.
8. The Tribunal having considered the evidence of AW-1 and documents marked as Ex.A-1 to 3 dismissed the application holding that the knowledge of disciplinary action taken against the opposite party i.e., dismissal from service, can be imputed to him. Hence, tendering of dismissal order along with cheque is held sufficient. But, this application for approval of the action taken against the opposite party is sent to this Tribunal on 12.1.2013 i.e., after one day from the date of dismissal as per the postal cover. There is no simultaneous transaction of order of dismissal and filing of this application for seeking approval of such action. Therefore, it is evident that the applicant corporation has failed to comply the requirements under Section 33(2)(b) of ID Act.
9. The provisions of Section 33(2)(b) of I.D. Acts reads as under:
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
10. This Court in the case of M/s.BEML Limited v. Naveen in WP No.11191/2013 c/w WP No.11192/2013 disposed of on 29.1.2014 considering the provisions of Section 33(2)(b) of I.D Act held that there is no more doubt that the orders of dismissal of even date 29.05.2009 to be effective at the end of the shift on the same day, the tendering of one month’s wage which the respondent-workmen accepted on the very same day and filing the applications involving Section 33(2)(b) of the Act on 30.05.2009 do constitute one transaction. Accordingly, quashed the order passed by the Tribunal.
11. The Hon’ble Supreme Court while considering the provisions of Section 33(2)(b) of the I.D Act in the case of Calcutta State Transport Corporation v. Md.Noor Alam has held as under:
4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18,1967 and it was to be effective only from July 1, 1967. Before that period it was open to the competent authority to withdraw the order. Therefore the (late of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file.
The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to s. 33(2)(b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under s. 33(2)(b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employer's conduct should show that the three things contemplated under the proviso are parts of the same transaction. [See Strawboard Manufacturing Co. v. Govind(1)]. In P. H. Kalyani v. M/s. Air France, Calcutta (2) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30, 1960. The wages were offered to him at the same time when the order was communicated. An application was made under s. 3 3 (2) (b) on the same day. It was held that the application was in accordance with the proviso to s. 3 3 (2)(b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day. It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.
12. By a plain reading of Section 33(2)(b) of I.D the Act and dictum of the Hon’ble Supreme Court in the case of Calcutta State Transport Corporation stated supra, it is clear that the difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.
13. Admittedly, in the present case, the Tribunal has recorded a finding that the petitioner has satisfied two conditions enumerated under Section 33(2)(b) of the Act and it has dismissed the application on the ground that the application for approval of action taken against the respondent was sent to the Tribunal only on 12.1.2013 i.e., the next day after dismissing the respondent from the services as per the postal cover and that there is no simultaneous transaction of order of dismissal and filing of the application, which is erroneous and contrary to the dictum of the decision of the Hon’ble Supreme Court in the case of Calcutta State Transport Corporation stated supra. It clearly indicates that the petitioner has complied with the provisions of section 33(2)(b) of the I.D Act.
14. For the reasons stated above, the writ petition is allowed. The impugned order dated 11.4.2016 passed by the Industrial Tribunal, Bangalore in Serial Application No.76/2013 (In ID No.148/2005) is quashed. The matter is remanded to the Tribunal for fresh consideration of the application filed under Section33(2)(b) of the Act in the light of the dictum of the Hon’ble Supreme Court in the case of Calcutta State Transport Corporation v. Md.Noor Alam stated supra and pass orders in accordance with law.
Sd/- JUDGE DM