Allowed

The Karnataka State Road v. Sri. K L Krupakara

Karnataka HC18 Dec 2023WP/27273/2019

Case brief

AI extract

What is this about?

The Karnataka High Court quashed an Industrial Tribunal award that had set aside a minor punishment for unauthorized absence. The Court held the respondent unexplained an inordinate six-year delay, rendering the dispute stale, and ruled the Tribunal lacked power to modify minor penalties.

What did the court decide?

The award dated 22.11.2018 passed by the Industrial Tribunal, Mysore is set aside; the order of punishment dated 27.11.2009 is confirmed.

The Karnataka State Road Vs Sri. K L… — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.27273 OF 2019 (L-KSRTC)

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BETWEEN:

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THE KARNATAKA STATE ROAD TRANSPORT CORPORATION, BENGALURU CENTRAL DIVISION, BY ITS CHIEF LAW OFFICER, K.H.ROAD, SHANTHINAGAR, BENGALURU - 560 027.

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…PETITIONER

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(BY SRI. R.B.ANEPPANAVAR., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SRI. K.L.KRUPAKARA S/O LATE LAKKAIAH, AGED ABOUT 48 YEARS, OCC: TRAFFIC CONTROLLER, R/AT KANTHARAJAPURA VILLAGE, SHRAVANABELAGOLA HOBLI, CHENNARAYAPATNA TALUK, HASSAN DISTRICT - 573 201.

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(BY SRI. THIPPESWAMY., ADVOCATE FOR SRI. M.C.BASAVARAJU., ADVOCATE)

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…RESPONDENT

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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 PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.Aneppanavar.R.B., learned counsel for the petitioner and Sri.Thippeswamy., learned counsel on behalf of Sri.M.C.Basavaraju., for the respondent have appeared in person.

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The brief facts are these:

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The respondent Sri.K.L.Krupakara., was appointed as a Traffic Controller in the establishment of the Corporation with effect from 28.10.2000. He remained unauthorizedly absent for duties from 09.04.2008 to 24.07.2008 for 106 days in total disregard to the obligation of discharging the day to day work of the Corporation without taking prior permission from his superior or without submitting any leave application. The Depot Manager, KSRTC, Maddur Division intimated to the Administrative Officer, KSRTC, Mandya Division regarding the unauthorized absence of the respondent. The respondent was issued with Call letters dated:06.05.2008 and 10.07.2008 calling upon him to report to duty. The respondent did not report to duty. Hence, he was issued with Articles of charge on 15.07.2008 for the unauthorized absence from 09.04.2008 to

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24.07.2008. The respondent submitted his reply on 04.08.2008. Not being satisfied with the reply of the respondent, the Corporation appointed an inquiry officer. The inquiry officer issued inquiry notices to the respondent. The respondent did not substantiate his unauthorized absence before the inquiry officer. Taking note of the materials on record, the inquiry officer submitted his findings holding that the charges are proved. The inquiry officer submitted his report on 03.11.2009 to the disciplinary authority. Accordingly, the Divisional Controller, Mandya Division, Mandya issued a show cause notice on 07.11.2009 enclosing the report of the inquiry officer and his past history. The respondent did not submit his reply. The disciplinary authority based on the findings of the inquiry officer as well as taking note of the material evidence on record, passed an order on 27.11.2009 and imposed minor punishment by reducing one increment permanently as a specific punishment for the offences committed by him.

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After a lapse of almost six years, the respondent raised a dispute questioning the order of minor punishment and the same came to be referred for adjudication under Section 10(1)(d) of the Industrial Disputes Act, 1947 before the

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Industrial Tribunal, Mysore in Reference No.18/2016. The Industrial Tribunal held that the disciplinary inquiry conducted by the Corporation as fair and proper. The Industrial Tribunal vide award dated:22.11.2018 set-aside the order of minor 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.

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Learned counsel for the petitioner and the respondent have urged several contentions. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers and the records with utmost care.

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The following points would arise for consideration:

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Whether the Industrial Tribunal is justified in concluding that there is no delay and the dispute is not stale?

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Whether the award of the Tribunal requires interference?

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The facts are sufficiently stated and do not require reiteration. Suffice it to note that, the respondent came under a disciplinary inquiry proceedings and was visited with an order

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of minor punishment back in the year 2009 i.e., on 27.11.2009. Strangely, he raised the dispute after a lapse of almost six years.

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Sri.R.B.Aneppanavar., learned counsel appearing on behalf of the Corporation in presenting his arguments strenuously urged that there is an inordinate delay of almost six years in raising the dispute. He relied upon the decision of the Hon'ble Apex Court in PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER reported in (2015) 15 SCC 1 to contend that the Hon'ble Apex Court has settled the law regarding delay and laches. Learned counsel further submits that the Tribunal has erred in interfering with the order of minor punishment. Counsel therefore, submits that the award of the Tribunal is liable to be set-aside and the Writ Petition may be allowed.

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By way of reply, learned counsel Sri.Thippeswamy., justified the award of the Tribunal and submits that the Writ Petition is devoid of merits and the same is liable to be dismissed. In so far as the contention regarding delay and laches, learned counsel placed reliance on the decision of

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AJAIB SINGH VS. SIRHIND COOPERATIVE MARKETING - CUM - PROCESSING SERVICE SOCIETY LIMITED AND ANOTHER reported in (1999) 6 SCC 82 .

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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 minor punishment back in the year 2009 i.e., on 27.11.2009. Strangely, he raised the dispute in the year 2016. In the claim statement, at paragraph No.7, the delinquent has contended that he was apprehended that he may be removed from service if he challenges the order of minor punishment. The Corporation filed its detailed counter statement and prayed for dismissal of the reference on the grounds of delay and laches. The Tribunal relied upon the decisions of the Apex Court and this Court and concluded that the delay is not the ground to dismiss the reference. The Tribunal also held that the workman might have approached the Union to raise the dispute, hence it condoned the delay. The findings recorded by the Tribunal on delay and laches are untenable. The reason is apparent. There is nothing on record to show that the workman had approached the Union to raise the dispute. Furthermore,

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the reasons accorded to condone the delay are also contrary to

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the law laid down by the Apex Court in PRABHAKAR 's case.

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It is pivotal to note that the Apex Court in PRABHAKAR V/S. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND

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ANOTHER reported in (2015) 15 SCC page 1 has laid down

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the law about delay and laches. In paragraphs 42.1 to 42.6 and 44, the Apex Court has held as under:

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" 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 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

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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.

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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.

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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

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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.

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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 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.

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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

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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.

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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.

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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

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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' financial arrangement and to avoid dislocation of an industry."

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Reverting to the facts of the case, it is not in dispute that the order of minor punishment was passed on 27.11.2009. However, the respondent chose to challenge the order of punishment after a lapse of almost six years. There is an inordinate delay in raising the dispute. The dispute had become stale as of the date of the adjudication. The Industrial Tribunal has over-looked this aspect of the matter and has erroneously proceeded and condoned the delay. The Tribunal ought to have rejected the dispute on the grounds of delay and laches.

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Furthermore, the Tribunal has erred in modifying the imposition of minor penalty. This modification is without jurisdiction in as much as the Tribunal has no power to modify the minor penalty. It should have been seen that under Section 11A of the Industrial Disputes Act, it could not have been pressed into service in respect of the minor penalty. The

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managerial decision imposing minor penalty is absolute and the same cannot be modified in exercise of power under Section 11A of the Industrial Disputes Act. In any view of the matter, the award of the Industrial Tribunal cannot be sustained. The Award of the Industrial Tribunal is otherwise erroneous and unjust.

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Lastly, learned counsel Sri.Thippeswamy., submits that even if there is a delay, the Tribunal/ Labour Court can mould the relief and pass the award and referred to the AJAIB SINGH' s case.

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The submission is noted with care. In AJAIB SINGH 's case, the Apex Court has held that in case there is a delay, the Labour Court/ Tribunal can mould the relief by declining grant of backwages. Therefore, moulding of relief is restricted to denial of backwages only and not setting aside the order of punishment.

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For the reasons stated above, the award of the Industrial Tribunal is liable to be set-aside. Accordingly, it is set-aside.

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