High Court Kerala quashed an Industrial Tribunal award dismissing a delay objection. Court held an eight-year lapse rendered the dispute stale under Section 10 of ID Act, confirming the original 2002 punishment.
Award of the Industrial Tribunal dated 21.06.2017 is quashed; the order of punishment dated 31.01.2002 is confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:39729 WP No. 1233 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.1233 OF 2021 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER, KSRTC, BANGALORE RURAL DIVISION, BANGALORE - 560 054.
NOW REPRESENTED BY THE CHIEF LAW OFFICER KSRTC, CENTRAL OFFICE, SHANTHINAGAR, SARIGE SADANA, BANGALORE - 560 027.
…PETITIONER
(BY SMT.H.R.RENUKA, ADVOCATE)
AND:
SRI. BASAVARAJU, AGED ABOUT 49 YEARS, Digitally signed by THEJASKUMAR N CONDUCTOR, BADGE NO.1252, Location: HIGH REPRESENTED BY THE GENERAL SECRETARY, COURT OF KASRTC AND BMTC UNITED KARNATAKA EMPLOYEES UNION, NO. 23, 4TH MAIN ROAD, MATHIKERE EXTENSION, BANGALORE - 560 054.
…RESPONDENT
(RESPONDENT - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Smt.H.R.Renuka., learned counsel for the petitioner has appeared in person.
2. The brief facts are these:
The respondent was appointed as a Conductor in the establishment of the Corporation. On 06.10.2000, he was conducting the bus that belonged to the Corporation that was plying on the route from Kestur to Channapatna. The bus was intercepted at Haralapura and upon inspection, it was found that the respondent had neither issued tickets to four passengers nor collected ticket fare of Rs.4/- (Rupees Four only) each. He came under a disciplinary inquiry proceedings and the inquiry officer conducted a detailed inquiry. During the inquiry, the respondent admitted the guilt. The inquiry officer submitted his findings holding that the respondent is guilty of charges as he had admitted the guilt. The second show cause notice was issued to the respondent for which he did not submit
his reply. The disciplinary authority, considering the gravity of the misconduct, passed the order of punishment on 31.01.2002 postponing ensuing one annual increment with cumulative effect.
After a lapse of almost eight years, the respondent raised a dispute and the same was referred to the Industrial Tribunal, Bengaluru in I.D.No.247/2010. The Industrial Tribunal held that the domestic inquiry conducted by the Corporation was fair and proper. The Tribunal vide Award dated:21.06.2017 set-aside the order of punishment. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.
NC: 2023:KHC:39729 WP No. 1233 of 2021
interference by this Court?
The facts are sufficiently stated and do not require reiteration. Suffice it to note that, the respondent came under a disciplinary proceedings and was visited with an order of punishment back in the year 2002 i.e., on 31.01.2002. Strangely, he raised the dispute after a lapse of almost eight years.
NC: 2023:KHC:39729 WP No. 1233 of 2021
6. The issue revolves around the delay and laches. It
is not in dispute that the delinquent came under a disciplinary inquiry on account of misconduct and he was visited with an order of punishment back in the year 2002 i.e., on 31.01.2002. Strangely, he raised the dispute in the year 2010. He contended that he had preferred an appeal before the Appellate Authority, but the Authority has not disposed of the appeal. It is also contended that he had visited the Authority and had made a request to dispose of the appeal, but the Appellate Authority has not disposed of the appeal for several years. Hence, he contended that if there is a delay in raising the dispute, the same may be condoned. It is pivotal to note that the first point for adjudication relates to delay and laches. A perusal of the award would reveal that the Tribunal has observed that the delay and the merits to be taken in a balanced circumstances, and concluded that just because there is a delay of eight years, the same cannot be a ground to reject the case and erroneously held that the delay is liable to be condoned. This is incorrect. The reason is apparent. The Tribunal ought to have considered whether sufficient reasons were accorded by the workman to condone the delay.
NC: 2023:KHC:39729 WP No. 1233 of 2021
Furthermore, the reasons accorded to condone the delay are contrary to the law laid down by the Apex Court in PRABHAKAR 's case.
It is pivotal to note that the Apex Court in PRABHAKAR
V/S. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND
ANOTHER reported in (2015) 15 SCC page 1 has laid down the law about delay and laches. In paragraphs 42.1 to 42.6 and 44, the Apex Court has held as under:
" 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
NC: 2023:KHC:39729 WP No. 1233 of 2021
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 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.
NC: 2023:KHC:39729 WP No. 1233 of 2021
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 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.
42.4. Take, for example, a case where the workman issues notice after his termination, questioning the termination and demanding reinstatement. He is able to show that there were discussions from time to time and the parties were trying to sort out the matter amicably. Or he is able to show that there were assurances by the Management to the effect that he would be taken
NC: 2023:KHC:39729 WP No. 1233 of 2021
back in service and because of these reasons, he did not immediately raise the dispute by approaching the Labour Authorities seeking reference or did not invoke the remedy under Section 2-A of the Act. In such a scenario, it can be treated that the dispute was live and existing as the workman never abandoned his right. However, in this very example, even if the notice of demand was sent but it did not evoke any positive response or there was specific rejection by the Management of his demand contained in the notice and thereafter he sleeps over the matter for a number of years, it can be treated that he accepted the factum of his termination and rejection thereof by the Management and acquiesced into the said rejection.
42.5. Take another example. A workman approaches the civil court by filing a suit against his termination which was pending for a number of years and was ultimately dismissed on the ground that the civil court did not have jurisdiction to enforce the contract of personal service and does not grant any reinstatement. At that stage, when the suit is dismissed or he withdraws that suit and then involves the machinery under the Act, it can lead to the conclusion that the dispute is still alive as the workman had not accepted the termination but was agitating the same; albeit in a wrong forum.
NC: 2023:KHC:39729 WP No. 1233 of 2021
42.6. In contrast, in those cases where there was no agitation by the workman against his termination and the dispute is raised belatedly and the delay or laches remain unexplained, it would be presumed that he had waived his right or acquiesced into the act of termination and, therefore, at the time when the dispute is raised it had become stale and was not an "existing dispute." In such circumstances, the appropriate Government can refuse to refer. In the alternative, the Labour Court/ Industrial Court can also hold that there is no "industrial dispute" within the meaning of Section 2(k) of the Act and, therefore, no relief can be granted.
44. To summarize, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the ID Act, yet it is for the "appropriate Government" to consider whether it is expedient or not to make the reference. The words "at any time" used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the ID Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed in as much as unless there is a satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers'
NC: 2023:KHC:39729 WP No. 1233 of 2021
financial arrangement and to avoid dislocation of an industry."
is rejected on the grounds of delay and laches, there is nothing to discuss on the merits of the case as requested by the counsel for the petitioner. For the reasons stated above, the award of the Industrial Tribunal is liable to be set-aside. Accordingly, it is set-aside.
NC: 2023:KHC:39729 WP No. 1233 of 2021
9. Resultantly, the Writ Petition is allowed.
In view of disposal of the Writ Petition, the interim order granted by this Court stands discharged and the pending interlocutory applications if any are disposed of.
Sd/JUDGE
MRP List No.: 1 Sl No.: 31
3 issues framed by the court
Whether the Industrial Tribunal was justified in concluding that there was no delay and the dispute was not stale?
Whether the Industrial Tribunal’s award requiring interference by this Court on the grounds of inordinate delay and laches?
Whether the eight-year delay in raising the dispute rendered the industrial dispute stale and non-existent?
Colour shows how this judgement treated each authority
PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHERRelied on¶33
(2015) 15 SCC 1 · Who else cites this
2 provisions across 2 enactments
THE DIVISIONAL CONTROLLER, KSRTC
SRI. BASAVARAJU
JYOTI MULIMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
