IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD REVIEW PETITION NO.454 OF 2018 IN WRIT APPEAL NO.6609 OF 2017 BETWEEN:
JOHN D’SOUZA S/O LOUIS D’SOUZA AGED 65 YEARS “TULASI NILAYA # Q-56, 5TH MAIN, MARUTHI NILAYA BANGALORE-560021 PRESENTLY R/AT. #53R, DODDABELE LAYOUT KENGERI, BANGALORE-560060. .. PETITIONER (By Sri.JOHN D SOUZA, PARTY-IN-PERSON) AND:
KARNATAKA STATE ROAD TRANSPORT CORPORATION BANGALORE CENTRAL DIVISION BANGALORE-560027 BY DIVISIONAL CONTROLLER REPRESENTED BY ITS CHIEF LAW OFFICER.
(By SMT.H.R.RENUKA, ADV.) ... RESPONDENT THIS REVIEW PETITION IS FILED UNDER ORDER 47, RULE 1 R/W 114 OF CPC, PRAYING TO REVIEW THE ORDER PASSED BY THIS HON’BLE COURT IN WRIT APPEAL No.6609/2017 DATED 30-11-2018 VIDE ANNEXURE-A AND ACCORDINGLY DISMISS THE WRIT APPEAL No.6609/2017 TO MEET THE ENDS OF JUSTICE AND EQUITY & ETC.
THIS REVIEW PETITION COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., MADE THE FOLLOWING:
ORDER Sri.John D.Souza, learned counsel for the petitioner – party-in-person.
Smt.H.R.Renuka, learned counsel for the respondent.
2. Additional documents filed in I.A.No.1/2018 are taken on record. Accordingly, I.A.No.1/2018 is allowed.
3. Heard the party-in-person on the question of admission.
4. This petition has been filed seeking review of the order passed by the Division Bench of this Court dated 30.11.2018 in W.A.No.6609/2017 (L-KSRTC).
5. Facts giving rise to the filing of this review petition briefly stated are that the respondent herein had filed an intra Court appeal under Section 4 of the Karnataka High Court Act, 1961 against order dated 20.09.2017 passed in W.P.No.63562/2016 and had consequently sought quashment of order dated 28.10.2016 passed by the Labour Court. A Division Bench of this Court vide order dated 30.11.2018 inter alia held that the order passed by the Labour Court as well as the learned Single Judge suffers from the error apparent on the face of the record as the learned Single Judge as well as the Labour Court have failed to appreciate that the application under Section 33(2)(b) of the Industrial Disputes Act, 1947, was required to be decided in the light of the observations made in the order dated 14.07.2016 passed in W.A.No.30/2015. It was further held that the learned Single Judge has failed to appreciate that the finding with regard to victimization of the petitioner – party-in-person herein is based on additional material, which was not part of the enquiry conducted against the petitioner – party-in- person. Being aggrieved, this review petition has been filed.
6. Petitioner who has appeared in person has submitted that no departmental enquiry is pending against him. It is further submitted that the petitioner was not even required to adduce evidence as the charge was required to be proved by the respondent. It is also urged that the Labour Court has not traveled beyond the scope of the order passed by the Division Bench of this Court dated 14.07.2016 and no specific direction has been issued by this Court to the Labour Court. It is also submitted that the history sheet should have been supplied to the petitioner and the quantum of punishment awarded to the petitioner is grossly disproportionate. It is also pointed out that the documents produced before the Labour Court namely Exhibits R1 to R104 were not disputed by the respondent herein except Exhibits R5 and R6. It is also submitted that the decision rendered by the Hon’ble Supreme Court in the case of ‘LALLA RAM V. vs.
D.C.M. CHEMICAL WORKS’ 1978 SUPREME COURT CASES (L & S) 396 is applicable to the fact situation of the case and the Labour Court has not violated any of the directions issued by the Division Bench of this Court. Therefore, the reasoning assigned by this Court in the order dated 30.11.2018 is not correct. It is also urged that the records are necessary in order to decide the review petition.
7. On the other hand, learned counsel for the respondent has submitted that the petitioner has made an attempt to argue the appeal de novo and it has not been demonstrated as to how the order passed by this Court suffers from the error apparent on the face of the record.
8. We have considered the submissions made on both sides and have perused the record. The operative portion of the order passed by the Division Bench of this Court dated 30.11.2018 reads as under:
“12. Admittedly, the aforesaid order passed by the Division Bench has attained finality and the Labour Court was required to deal with the application filed by the appellant under Section 33(2)(b) of the Act in the light of observations made in the order and its jurisdiction to deal with the application was circumscribed by the findings as well as the directions contained in the aforesaid order passed by the Division Bench. The Labour Court vide impugned order dated 28.10.2016, has answered issue No.1 with regard to domestic enquiry being fair and proper in favour of the appellant. In other words, it has been held by the Labour Court that the domestic enquiry held against the respondent was fair and proper. In paragraph 13, the Labour Court has framed following four issues:
1. Whether domestic enquiry against first party is fair and proper?
2. Whether the Enquiry Officer is justified in holding that charges are proved?
3. Whether the Disciplinary authority is justified in dismissing the first party?
4. To what award or order the parties entitled?
Thereafter, from paragraphs 25 to 45, the Labour Court has appreciated the evidence on record in detail and has recorded the findings issue wise. In paragraphs 25 to 45, the Labour Court while recording findings has also taken into account the documentary evidence produced by the respondent for the first time before the Labour Court, which was not produced by him before the Enquiry Officer and has recorded the findings in favour of respondent and has rejected the application filed by the petitioner under Section 33(2)(b) of the Act. From close scrutiny of the order passed by the Labour Court particularly paragraphs 25 to 45, it is evident that the findings by the Labour Court with regard to perversity of the findings recorded by the Enquiry Officer and victimization is based on additional material on record, which did not form a part of the enquiry proceeding. The Labour Court, while passing the impugned order has not only traveled beyond the order of remand, but has acted like an Appellate Authority.
13. The learned Single Judge has failed to appreciate that the respondent only cross-examined the witnesses of appellant in the departmental enquiry and did not adduce any evidence. The respondent for the first time before the Labour Court produced the documents viz., Exs.R1 to R104, which have been considered by the Labour Court. The learned Single Judge has also failed to appreciate that the Labour Court was required to decide the application under Section 33(2)(b) of the Act in the light of observations made by the Division Bench of this Court in order dated 14.07.2016 passed in W.A.No.30/2015, which had attained finality and was binding on the Labour Court. The learned Single Judge has also not appreciated that the finding with regard to victimization of respondent is based on additional material, which was not part of the enquiry conducted against the respondent.
14. In view of preceding analysis, in our considered opinion, the order passed by the Labour Court as well as the order passed by the learned Single Judge suffer from the error apparent on the face of the record. The impugned orders are accordingly quashed and set aside. In the fact situation of the case, we are left with no option but to remit the matter again to the Labour Court to decide the application preferred by the appellant under Section 33(2)(b) of the Act afresh in the light of observations made by Division Bench of this Court in the order dated 14.07.2016 passed in W.A.No.30/2015 as well as the observations contained in this order. Having regard to the fact that the respondent has already attained the age of superannuation in the year 2010 itself, we direct the Labour Court to decide the application preferred by the appellant under Section 33(2)(b) of the Act within a period of six weeks from the date of receipt of a copy of this judgment, as stated supra.”
9. Thus, from perusal of the aforesaid paragraphs, it is evident that this Court has pointed out the reasons as to how the order passed by the Division Bench has not been complied with and how the learned Single Judge as well as the Labour Court has failed to appreciate the aforesaid aspect of the matter. It is well settled in law that in the garb of the review, a party cannot be allowed to argue the matter de novo. (See STATE OF WEST BENGAL vs. KAMAL SENGUPTA, (2008) 8 SCC 612 and ‘S.BAIRATHI AMMAL vs.
PLNI ROMAN (2009) 10 SCC 464).
10. In our considered opinion, the order passed by this Court neither suffers from the error apparent on the face of the record nor any jurisdictional infirmity warranting interference in exercise of review jurisdiction.
Accordingly, the review petition is disposed of.
Sd/- JUDGE Sd/- JUDGE RV