Allowed

Karnataka State Road Transport Corporation v. Shivalinga

Karnataka HC21 Nov 2023WP/14306/2020

Case brief

AI extract

What is this about?

Writing for a single judge, the High Court set aside a Labour Court order granting back wages under Section 33 C(2) of the Industrial Disputes Act. The court held that Section 33 C(2) is an execution proceeding where the court cannot adjudicate disputed rights or compute liabilities when the dismissal remains unchallenged.

What did the court decide?

Quashed the order dated 19.10.2019 passed by the Labour Court, Mysuru in Application No. 05/2017 under Section 33 C(2) of the Industrial Disputes Act.

Karnataka State Road Transport Corporation… — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.14306 OF 2020 (L-KSRTC)

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BETWEEN:

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KARNATAKA STATE ROAD TRANSPORT CORPORATION, MYSURU RURAL DIVISION, BANNIMANTAP, MYSURU - 570 015, BY ITS DIVISIONAL CONTROLLER, REPRESENTED BY ITS CHIEF LAW OFFICER. …PETITIONER

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(BY SMT. RENUKA H.R., ADVOCATE)

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AND:

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SHIVALINGA S/O MADAIAH, AGED ABOUT 50 YEARS R/O NO.4793, 5^TH CROSS, Digitally signed by THEJASKUMAR N MARATA BLOCK, N.R.MOHALLA, Location: HIGH MYSURU - 570 007. COURT OF …RESPONDENT KARNATAKA

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(BY SRI. SHEKAR L., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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THIS WRIT PETITION IS COMING ON FOR DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Smt.H.R.Renuka., learned counsel for the petitioner and Sri.L.Shekar., learned counsel for the respondent have appeared in person.

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2. The brief facts are these:

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The respondent was working as a Security Guard in the establishment of the Corporation. He remained absent from duty unauthorizedly with effect from 06.06.2009. The Depot Manager sent a report to the Divisional Controller intimating the unauthorized absence of the respondent. Based upon the report of the Depot Manager about his unauthorized absence, a call letter was issued on 08.07.2009 calling upon him to report to duty and he did not respond to the Articles of charge. Hence, he was issued with Articles of charge alleging unauthorized absence. The respondent did not respond to the call letter, hence he was notified of the date of inquiry by way of paper publication in Kannada Prabha daily newspaper on 09.03.2010. The respondent did not attend the inquiry. Hence, he was placed ex-parte . The inquiry officer conducted a detailed inquiry

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and submitted his findings holding that the charges are proved. The respondent was furnished with the findings of the inquiry officer vide show cause notice, to which he did not submit his reply. On 06.05.2010, the respondent was dismissed from service on the charge of unauthorized absence.

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After a lapse of almost seven years, the respondent filed an application under Section 33 C(2) of the Industrial Disputes Act before the Labour Court, Mysuru in Application No.05/2017 and sought full backwages in a sum of Rs.7,68,330/- (Rupees Seven Lakh Sixty Eight Thousand Three Hundred and Thirty only) from 06.05.2010 to 06.11.2017 without questioning the order of dismissal. The Labour Court on adjudication of the claim application, vide order dated:19.10.2019 allowed the application in part and directed the Corporation to pay a sum of Rs.7,68,330/- (Rupees Seven Lakh Sixty Eight Thousand Three Hundred and Thirty only) with interest at 6% p.a., from the date of order till the date of realisation. It is this order that is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

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Learned counsel for the petitioner and the

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respondent have urged several contentions.

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Smt.H.R.Renuka., learned counsel in presenting her arguments vehemently contended that the Labour Court has failed to consider as to whether the respondent is a workman concerned or not. She argued by saying that it is a disputed question of fact. Provisions of Section 33 C (2) would be applicable only in the event there is an award of settlement in favour of the workman which is capable of computation. The order of dismissal has not been questioned by the respondent. It is also contended on behalf of the Corporation that the order of dismissal was passed on 06.05.2010, but the application under Section 33 C (2) is filed on 13.11.2017. There is an inordinate delay in filing the application. To substantiate her contention, learned counsel placed reliance on the following decisions:

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KARNATAKA STATE ROAD TRANSPORT CORPORATION, BENGALURU CENTRAL DIVISION VS. C.V. VENKATARAVANA - W.P.No.24649/2016 DISPOSED OF ON 16.04.2021.

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C.V. VENKATARAMANA VS. K.S.R.T.C., BANGALORE CENTRAL DIVISION - W.A.NO.541/2021 DISPOSED OF ON 01.03.2023.

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THE CHIEF SECURITY & VIGILANCE OFFICER, BMTC VS. SRI.M.VENKATASWAMY REDDY - W.P.NO.4344/2018 DISPOSED OF ON 14.07.2023.

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THE MANAGING DIRECTOR, KSRTC VS. MR.B.A.VARADARAJU - W.P.NO.18558/2018 DISPOSED OF ON 24.07.2023.

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In reply, learned counsel Sri.L.Shekar., strenuously urged that the Corporation has violated Section 33 (2)(b) of the I.D Act. Hence, there is no infirmity in applying Section 33 C(2) of the I.D Act. He argued by saying that the Corporation has not made any efforts to get approval of the order of dismissal by invoking Section 33(2)(b) of the I.D Act. Learned counsel vehemently contended that when the termination order is not approved by the Tribunal, then the order of dismissal must be treated as ‘non-est’ . Lastly, he contends that there is no effective break of the employer and employee relationship till the Tribunal approves the order of dismissal. To substantiate his contention, learned counsel placed reliance on the following decisions:

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JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LIMITED VS. RAM GOPAL SHARMA AND OTHERS - (2002) 2 SCC 244.

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ENGINEERING LAGHU UDYOG EMPLOYEES' UNION VS. JUDGE, LABOUR COURT AND INDUSTRIAL TRIBUNAL AND ANOTHER - (2003) 12 SCC 1.

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DUNCAN ENGINEERING LIMITED AND OTHERS VS. AJAY C.SHELKE AND OTHERS - 2021-III-LLJ-BOM295

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B.M.T.C CENTRAL OFFICE VS. R.RAJENDRAN - W.P.NO.14466/2010 DISPOSED OF ON 28.07.2011.

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B.M.T.C CENTRAL OFFICE VS. R.RAJENDRAN - W.A.NO.15467/2011 DISPOSED OF ON 12.03.2013.

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M/S. NEW INDIA MOTORS (P.) LTD., NEW DELHI VS. K.T.MORRIS - AIR 1960 SC 875.

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Heard the contentions urged on behalf of the respective parties and perused the writ papers and the records with care.

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The point that requires consideration is whether the order of the Labour Court requires interference.

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The facts of the case are quite simple. The

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captioned Writ Petition arises out of a proceeding brought by the respondent under Section 33 C (2) of the I.D Act. An

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attempt is made on behalf of the respondent to contend that as on the date of passing the order of dismissal, a dispute in I.D.No.148/2005 was pending adjudication and the Corporation

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has not made efforts to file an approval application as required under Section 33(2)(b) of the I.D Act. Hence, the order of dismissal is non-est and thus the respondent is entitled to receive a sum of Rs.7,68,330/- (Rupees Seven Lakh Sixty Eight thousand Three Hundred and Thirty only) as the arrears of wages for the period from 06.05.2010 to 06.11.2017.

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The Labour Court has concluded that the applicant is entitled to receive the aforesaid amount. Perused the order of the Labour Court with utmost care. The Labour Court has observed that the Corporation has not obtained approval of the order of dismissal hence, it is liable to pay the wages. The observation appears to be based on misconception. The reasoning employed in the order is unsustainable in law. It is not in dispute that the litigation relates to the application filed under section 33 C (2) of the I.D. Act. The scope and ambit of Section 33 C (2) have been defined by catena of decisions by the Apex Court. In other words, where a case involves an

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investigation into the applicant’s right to the relief and the corresponding liability of the employer, such an investigation is impressible in an application under section 33 C (2) of the Act. It is perhaps well to observe that in PUNJAB BEVERAGES case, Bhagawati. J held that the worker who has been dismissed would no longer be in the service of the employer. He/she cannot ask the Labour Court in an application under section 33 C (2) to disregard his/her dismissal as wrongful and on that basis to compute his/her wages.

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Suffice it to note that the jurisdiction of the Labour Court under Section 33 C (2) was dealt with by the Supreme Court exhaustively in several cases including MYSORE STATE ROAD

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TRANSPORT CORPORATION, BANGALORE VS SK ATHANI reported in AIR 1973 SC 2448 . Furthermore, the jurisdiction of the Labour Court under section 33 C (2) is analogous to the execution court. Section 33 C (2) is a proceeding like an execution.

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In the present case, the applicant has claimed that he is entitled for the wages. But it is relevant to note that there

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has been no adjudication. The Corporation has disputed the entitlement of the applicant to claim wages for the aforesaid period. Therefore, in the absence of adjudication of the right of the respondent to recover the amount in question from the Corporation, the Labour Court could not have adjudicated the liability in a proceeding under Section 33 C (2) of the I.D Act.

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As already noted above, I have perused the order with care. The Labour Court has not even computed the wages and straight away directed the Corporation to pay the amount as claimed by the respondent. This is unsustainable in law. Furthermore, the issue is squarely covered by the order of the Division Bench in W.A.No.541/2021.

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Lastly, an attempt is made on behalf of the respondent to contend that the order of dismissal is void, since the Corporation has not taken approval under Section 33(2)(b) of the I.D Act. Learned counsel Sri.L.Shekar,. relied upon the decisions referred to supra. Suffice it to note that the present case relates to 33 C (2) application. The decisions at Sl.Nos.1 to 3 relates to 33 (2)(b) of the I.D Act. The order passed by the

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Co-ordinate Bench of this Court in W.P.No.14466/2010 is not applicable to the facts and circumstances of the present case, since the parties to the lis in the said petition compromised the matter. Hence, respondent cannot place reliance on the order passed by the Co-ordinate Bench of this Court in W.P.No.14466/2010.

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So far as reference made by counsel Sri.L.Shekar., on the decisions relied upon by him is concerned, the same are an authority for a proposition that in case the order of dismissal is passed in violation of Section 33(2)(b) of the Act, the same is void. However, it is trite law that even a void order is required to be challenged, otherwise it binds the parties.

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I may venture to say that the Labour Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order is unsustainable in law. The order of the Labor court is liable to be set aside and accordingly, it is set aside.

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Learned counsel for the petitioner and respondent have cited several cases, but I do not think that the law is in doubt.

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