IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT APPEAL No. 3318 OF 2016 (L - KSRTC) BETWEEN:
KARNATAKA STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICES, K.H.ROAD, SHANTINAGAR, BENGALURU – 560 027 BY ITS DIVISIONAL CONTROLLER REPRESENTED BY ITS CHIEF LAW OFFICER.
... APPELLANT (BY SMT H.R.RENUKA, ADVOCATE) AND:
RAJU.M SON OF MARAPPA AGED ABOUT 38 YEARS, HAMPASANDRA VILLAGE AND POST, CUDIBANDE TALUK – 561 209, CHIKKABALLAPURA DISTRICT – 562 101.
... RESPONDENT (BY SRI K.RAGHAVENDRA, ADVOCATE FOR RESPONDENT - ABSENT) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.31843 OF 2013 DATED 23.03.2016.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.12.2019 COMING ON THIS DAY, M.NAGAPRASANNA J., PRONOUNCED THE FOLLOWING:-
JUDGMENT Aggrieved by the order dated 23.3.2016 passed in W.P. No.31843 of 2013 by the learned Single Judge whereby the learned Single Judge has affirmed the order of the Industrial Tribunal passed under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) dismissing the application filed by the writ petitioner-Corporation seeking approval of the penalty of dismissal from service imposed on the respondent, the writ petitioner is in appeal.
2. The parties will be referred to as per their ranking in the writ petition before the learned Single Judge.
3. Brief facts of the case are as under:
The respondent, who was working as a trainee Driver in the petitioner-Corporation, remained absent from duty unauthorisedly from 24.9.2010. Noticing the absence, the Depot Manager submitted a report of unauthorised absence of the respondent to the Competent Authority on 4.10.2010. Based upon the said report, the Competent Authority issued a show cause notice/call letter on 24.12.2010 calling upon the respondent herein to report to duty immediately. He was also asked to show cause as to why his name should not be removed from the list of trainee drivers in the event he does not report to duty. The respondent did not submit any reply to the said show cause notice/call letter.
3. In those circumstances, a departmental enquiry was directed to be conducted against the respondent for unauthorised absence from duty. It is the case of the petitioner-Corporation that sufficient opportunity was given to the respondent to defend himself in the enquiry.
In the enquiry, a detailed report was submitted by the Enquiry Officer holding the charges leveled against the respondent herein as proved by his report dated 8.12.2011. On 7.1.2012, the respondent was issued with a show cause notice along with the finding of the Enquiry Officer calling upon him to show cause as to as why action should not be initiated in terms of the report. On 30.1.2012, accepting the findings of the Enquiry Officer, the respondent came to be removed from the list of trainee drivers.
4. In the interregnum, there were proceedings initiated before the Industrial Tribunal in I.D. No.148 of 2005 with regard to certain charter of demands in respect of revision of pay scales of employees and other issues which would be the conclusion of the dispute as applicable to each workmen as those proceedings were pending before the Industrial Tribunal. The petitioner- Corporation filed an application before the Tribunal in serial application SLA No.98 of 2012 in the pending I.D. No.148 of 2005 seeking approval of the order of removal passed by the petitioner-Corporation against the respondent herein under Section 33(2)(b) of the Act.
5. The Industrial Tribunal upon hearing the parties with regard to the application filed by the petitioner- Corporation for approval of removal, held that the charge alleged against the respondent was not proved and dismissed the application filed by the petitioner- Corporation seeking approval for removal of the respondent, who was a trainee driver.
6. This was challenged by the petitioner- Corporation before this Court in Writ Petition No.31843 of 2013. The learned Single Judge after hearing the matter, accepted the findings arrived at by the Industrial Tribunal in the approval proceedings holding that there was no case made out by the Corporation on the allegation of unauthorised absence and also recorded a finding that the Disciplinary Authority was required to prove that the absence of respondent was willful and in the absence of such findings, it would not amount to misconduct and dismissed the writ petition filed by the Corporation. Feeling aggrieved, the petitioner-Corporation has filed the instant writ appeal.
7. Heard Smt. H.R. Renuka, learned counsel for the appellant-Corporation. However, learned counsel for the respondent has remained absent.
8. The respondent-Driver, who was a trainee in the petitioner-Corporation remained absent for duty unauthorisedly from 24.9.2010 which led to a report being submitted by the Depot Manager to the Competent Authority intimating that the respondent herein has been unauthorisedly absent from 24.9.2010. The Competent Authority issued a show cause notice/call letter on 24.12.2010 calling upon the respondent herein to report to duty immediately. He was also asked to show cause as to why his name should not be removed from the list of trainee drivers in the event he does not report to duty. The respondent did not submit any reply, which led to initiation of disciplinary proceedings against the respondent to enquire into the allegation of unauthorised absence to which an Enquiry Officer was appointed on 25.6.2011. It is the submission of the Corporation that reasonable and sufficient opportunity was given to the respondent in the departmental enquiry. The Enquiry Officer submitted his findings against the respondent holding that the charges were proved in terms of the report dated 8.12.2011.
9. The petitioner-Corporation enclosing the report of the Enquiry Officer issued a second show cause notice to the respondent on 7.1.2012 seeking his comments on the findings of the Enquiry Officer. The respondent herein did not submit his reply to the said show cause notice as well. In those circumstances, the Disciplinary Authority accepting the finding of the Enquiry Officer passed an order on 30.1.2012 removing the name of the respondent from the select list of rolls of the Corporation, Bangalore Central Division, Bangalore, with immediate effect.
10. In the interregnum, an industrial dispute had been raised by the petitioner-Corporation Staff and Workers Federation with regard to certain charter of demands in respect of revision of pay scales of employees and other issues before the Industrial Tribunal at Bengaluru in I.D No.148 of 2005. Since the dispute with regard to charter of demands was pending before the Industrial Tribunal, an application was filed by the petitioner-Corporation before the Industrial Tribunal seeking approval of the removal of respondent by filing an application in serial application SLA No.98 of 2012 in the pending I.D. No.148 of 2005. The Industrial Tribunal while examining the matter under Section 33(2)(b) of the Act went on to analyze the issue of whether it amounted to misconduct; whether it was willful or otherwise of the proceedings conducted by the Enquiry Officer and the documents produced therein, and dismissed the application under Section 33(2)(b) of the Act seeking approval of the order of removal of the respondent.
11. This was challenged by the petitioner- Corporation before this Court in Writ Petition No.31843 of 2013. The learned Single Judge while affirming the order passed by the Industrial Tribunal dismissing the application of the petitioner-Corporation also analyzed that the finding of the Disciplinary Authority in the absence of it being a willful unauthorized absence would not amount to misconduct and held that the petitioner- Corporation has not made out a case for interference and accordingly, dismissed the Writ Petition.
12. Learned counsel appearing for the petitioner- Corporation would submit that the Industrial Tribunal has grossly erred in going into the merits of the matter and pronouncing upon the misconduct of the respondent with regard to the documents; the findings of the Enquiry Officer in the disciplinary proceedings is not within the scope of Section 33(2)(b) of the Act; and what is contemplated under Section 33(2)(b) of the Act is only a summary enquiry and the result of which would not preclude the workman from raising a dispute challenging the penalty that is imposed upon him on his removal from service.
13. To buttress her submissions, learned counsel for the petitioner-Corporation would place reliance on the latest judgment of the Apex Court in the case of JOHN D’SOUZA VS. KARNATAKA STATE ROAD TRANSPORT CORPORATION (Civil Appeal No.8042 of 2019 decided on 16th October 2019) and would place reliance of the following paragraphs:
“ 3. The question which falls for consideration revolves around the scope and ambit of the enquiry to be held by a Labour Court or Industrial Tribunal while granting or refusing approval for the discharge or dismissal of a workman under Section 33(2)(b) of the Act.
24. Section 33(2)(b) of the Act, thus, in the very nature of things contemplates an enquiry by way of summary proceedings as to whether a proper domestic enquiry has been held to prove the misconduct so attributed to the workmen and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. As a natural corollary thereto, the Labour Court or the Forum concerned will lift the veil to find out that there is no hidden motive to punish the workman or an abortive attempt to punish him for a non-existent misconduct.
25. The Labour Court/Tribunal, nevertheless, while holding enquiry under section 33(2)(b), would remember that such like summary proceedings are not akin and at par with its jurisdiction to adjudicate an ‘industrial dispute’ under Section 10(1)(c) and (d) of the Act, nor the former provision clothe it with the power to peep into the quantum of punishment for which it has to revert back to Section 11A of the Act. Where the Labour Court/Tribunal, thus, do not find the domestic enquiry defective and the principles of fair and just play have been adhered to, they will accord the necessary approval to the action taken by the employer, albeit without prejudice to the right of the workman to raise an ‘industrial dispute’ referable for adjudication under Section 10(1)(c) or (d), as the case may be. It needs pertinent mention that an order of approval granted under Section 33(2)(b) has no binding effect in the proceedings under Section 10(1)(c) and (d) which shall be decided independently while weighing the material adduced by the parties before the Labour Court/Tribunal.
38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their pima facie view under Section 33(2)(b), swell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act.
39. Consequently, the Labour Court shall in the instant case re-visit the matter afresh within the limit and scope of Section 33(2)(b), as explained above and keeping in mind that the exercise in hand is not adjudication of an ‘industrial dispute’ under Section (10)(i)(c) or (d) read with Section 11A of the Act. However, if the Labour Court finds that the domestic inquiry held against the appellant is suffering from one of the incurable defects as illustrated by this Court in Mysore Steel Works Pvt. Ltd., or Lalla Ram’s Cases, then it may look into the evidence adduced by the parties for the purpose of formation of its prima facie opinion.”
14. In terms of the afore extracted judgment of the Apex Court wherein the specific question that was formulated was the scope of the Labour Court or Industrial Tribunal while granting or refusing approval for the discharge or dismissal of a workman under Section 33(2)(b) of the Act. Answering this, the Apex Court has clearly indicated the parameters in which the Labour Court or Industrial Tribunal should record its findings while considering an approval application under Section 33(2)(b) of the Act.
15. The case on hand is also one such where the Industrial Tribunal while recording its findings on approval application records that the unauthorised absence of the respondent herein would not amount to misconduct on an analysis of the evidence that was let in the departmental enquiry. In view of the judgment of the Apex Court, the scope of the Labour Court and Industrial Tribunal as explained therein is applicable on all fours to the case on hand as well.
16. In the circumstances, following the law laid down by the Apex Court as aforesaid, we set aside the order of the Industrial Tribunal dated 27.10.2012 passed in SLA No.98 of 2012 (in I.D. No.148 of 2005) and the order of the learned Single Judge dated 23.3.2016 passed in Writ Petition No.31843 of 2013 and allow the writ appeal filed by the petitioner-Corporation and remit the matter back to the Industrial Tribunal at Bengaluru, to reconsider the matter afresh within the limit and scope of Section 33(2)(b) of the Act.
The parties to appear before the Industrial Tribunal at Bengaluru on 13.01.2020 without further notice.
Ordered accordingly.
There shall be no order as to costs.
Sd/- JUDGE Sd/- JUDGE Cs Ct-MJ