Allowed

The Divisional Controller Ksrtc v. Sri M Abdul Raheem

Karnataka HC29 Mar 2023WP/39014/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition filed by KSRTC Corporation to quash an Industrial Tribunal award. The Court held that under Section 33(2)(b) of the Industrial Disputes Act, the Tribunal exceeded its scope by adjudicating on the merits of the absence rather than the fairness of the domestic enquiry. The Court ruled that recording a finding of willful absence is not obligatory.

What did the court decide?

The writ petition allowed; the Industrial Tribunal award dated 06.11.2012 is quashed; the application for approval of dismissal is allowed.

The Divisional Controller Ksrtc Vs Sri M… — Pension and Retirement Benefits | Karnataka HC (2023)

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WP No. 39014 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION NO. 39014 OF 2013 (L-KSRTC)

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BETWEEN:

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THE DIVISIONAL CONTROLLER, KSRTC, MYSORE CITY, TRANSPORT DIVISION, MYSORE - 570 001.

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REP. BY CHIEF LAW OFFICER K.S.R.T.C. BENGALURU - 560 027. CENTRAL OFFICE, K.H. ROAD. BENGALURU - 27.

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… PETITIONER

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(BY SRI. H R RENUKA., ADVOCATE)

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AND:

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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SRI. M. ABDUL RAHEEM, S/O ABDUL MAJEED, MALLI KYATHANAHALLI, SHIVANASAMUDRA, MALAVALLI TALUK, MANDYA DISTRICT - 571 430.

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… RESPONDENT

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(RESPONDENT - SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER OF THE INDUSTRIAL TRIBUNAL, BANGALORE IN SLA.NO.317/2012 DTD.6.11.2012 VIDE ANNEX-E AND CONSEQUENTLY KINDLY PASS AN ORDER BY ALLOWING THE SLA NO.317/2012 AND GRANT APPROVAL TO THE DISMISSAL OF THE RESPONDENT AND ETC.

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WP No. 39014 of 2013

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THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Respondent - workman when working as Conductor in the petitioner - Corporation was dismissed from service on the ground that he had remained unauthorisedly absent.

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The petitioner filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act') seeking approval of the order of dismissal. The said application came to be dismissed by the Industrial Tribunal, against which order the present petition is filed.

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Learned counsel for the petitioner - Corporation submits that the Industrial Tribunal having held that the domestic enquiry conducted against the workman was fair and proper, ought to have allowed the application and the dismissal of the application by going into the merits of the case is impermissible.

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The respondent - workman though served with notice has not chosen to appear either in person or through an advocate.

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Considered the submissions made by the learned counsel for petitioner.

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WP No. 39014 of 2013

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The scope of Section 33(2)(b) of the Act is to find out as to whether the domestic enquiry conducted against the workman was fair and proper and there is no victimization of the workman by the employer. The Tribunal instead of going into the said aspect, has gone into the merits of the case in holding that the petitioner has not proved that the unauthorised absence of the workman was willful, which is beyond the scope of Section 33(2)(b) of the Act.

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Respondent - workman though served with notice had not chosen to appear before the Industrial Tribunal and was placed ex-parte, which implies that the workman had admitted the inquiry conducted against him was fair and proper and also there was no victimization by the petitioner - Corporation. The Industrial Tribunal was persuaded to dismiss the application on the ground that the disciplinary authority has failed to record a finding that the absence of the workman was willful by relying on the judgment of the Hon'ble Supreme Court in the case of Krushnakat B Parmar v. Union of India and another - 2012 AIR SCW 1633.

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The Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage

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WP No. 39014 of 2013

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Board and others vs. T.T. Murali Babu - 2014 (4) SCC 108, at Paragraph No.23, has held as under:

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"23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case [Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 : (2012) 1 SCC (L&S) 609] we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during

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WP No. 39014 of 2013

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the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent."

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In view of the decision of the Hon'ble Supreme Court in the aforesaid case, it is not obligatory on the part of the Disciplinary Authority to record a finding that the absence of the workman was willful. Hence, the impugned award passed by the Industrial Tribunal concerned is not sustainable in law.

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Accordingly, I pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 06.11.2012 passed by the Industrial Tribunal, Bangalore, in Serial Application No. 317/2012 is hereby quashed. Consequently, the application filed by the Petitioner - Corporation under Section 33(2)(b) of the Act is allowed.

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WP No. 39014 of 2013

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(iii) Liberty is reserved with the workman to challenge the order of dismissal in accordance with law.

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Sd/JUDGE

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The Divisional Controller Ksrtc v. Sri M Abdul Raheem

Case brief

What is this about?

What did the court decide?

The Divisional Controller Ksrtc v. Sri M Abdul Raheem

Case brief

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