Allowed

The Chief Security & Vigilance Officer v. Sri Hamsagiri C M

Karnataka HC4 Dec 2023WP/4343/2018

Case brief

AI extract

What is this about?

The High Court quashed the Labour Court’s order directing payment of wages under Section 33 C (2) of the Industrial Disputes Act. The Court held that without a prior adjudication of the employee’s right to wages and considering the abandoned dismissal order, the Labour Court lacked jurisdiction to direct payment.

What did the court decide?

The writ petition was allowed, the order of the III Addl. Labour Court dated 12.08.2017 was quashed via a writ of certiorari.

The Chief Security & Vigilance Officer Vs… — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:43523 WP No. 4343 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.4343 OF 2018 (L-KSRTC)

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BETWEEN:

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THE CHIEF SECURITY & VIGILANCE OFFICER, B.M.T.C., CENTRAL DIVISION, K.H.ROAD, SHANTHINAGARA, BANGALORE - 560 027. HEREIN REPRESENTED BY THE CHIEF LAW OFFICER, B.M.T.C., CENTRAL OFFICES, K.H.ROAD, SHANTHI NAGAR BENGALURU - 560 027.

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…PETITIONER

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(BY SRI. B.L.SANJEEV., 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. HAMSAGIRI.C.M. S/O CHIKKA MUNISWAMY, AGED ABOUT 40 YEARS, R/O NO.2385, 6^TH MAIN, 4^TH CROSS, VIVEKANANDANAGARA, BANGARAPETE, KOLAR DISTRICT - 563 114.

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…RESPONDENT

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(BY SRI. NAVEEN KUMAR., ADVOCATE FOR SRI. KANTHARAJA.V., 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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NC: 2023:KHC:43523 WP No. 4343 of 2018

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THIS WRIT PETITION IS COMING ON FOR REPORTING SETTLEMENT, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.Sanjeev.B.L., learned counsel for the petitioner and Sri.Naveen Kumar., learned counsel on behalf of Sri.Kantharaja.V., for the respondent have appeared in person.

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The brief facts are these:

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The respondent was working as a Driver cum Conductor in the establishment of the Corporation. He remained unauthorizedly absent for duties from 14.04.2007 onwards and despite a call notice, he failed to report to duty and continued his unauthorized absence. Based upon the report of the Depot Manager, the disciplinary authority issued articles of charge and he did not reply to the same. An inquiry officer was appointed and a detailed inquiry was conducted. The respondent did not participate in the inquiry, despite issuing inquiry notices and publishing the notice in the "Kannada Prabha", Kannada daily newspaper on 25.06.2008. After conducting the inquiry in accordance with C & D Regulations of the Corporation and by following the principles of natural justice, the inquiry officer submitted his findings holding that the respondent is guilty of

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3 - NC: 2023:KHC:43523 WP No. 4343 of 2018

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charges leveled against him. The disciplinary authority took note of the material on record and accepted the findings of the inquiry officer. The disciplinary authority on an independent assessment of the facts, circumstances and evidences on record, held that the respondent was guilty of charges and dismissed him from service vide order dated:25.03.2009. The respondent did not question the order of dismissal before any Court of law. The order of dismissal has attained finality.

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As things stood thus, after a lapse of almost six years, the respondent moved an application under Section 33 C (2) of the Industrial Disputes Act, 1947 before the III Addl. Labour Court, Bengaluru, which came to be registered as Application No.04/2015. The respondent sought for a direction to the petitioner Corporation to pay him Rs.11,34,888/- (Rupees Eleven Lakh Thirty Four Thousand Eight Hundred and Eighty Eight only) i.e., the alleged full wages from 25.03.2009 to 17.12.2014 together with 18% interest and costs of the proceedings. The Corporation filed its counter statement and denied the claim made by the respondent. The Labour Court vide order dated:12.08.2017 allowed the application in part and directed the Corporation to calculate and pay the salary to the

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NC: 2023:KHC:43523 WP No. 4343 of 2018

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applicant from 25.03.2009 to 17.12.2014 on the basis of his last drawn salary. 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. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers with utmost 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 are sufficiently stated and do not require reiteration. The issue revolves around the liability on the part of the Corporation to pay the amount. Suffice it to note that the respondent came under a disciplinary inquiry proceedings and was visited with an order of punishment i.e., dismissed from service back in the year 2009 i.e, on 25.03.2009. He did not question the order of dismissal and it has attained finality. Strangely, after a lapse of almost six years, he moved an application under Section 33 C (2) of the I.D Act claiming that he is entitled for full wages from 25.03.2009 to 17.12.2014.

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5 - NC: 2023:KHC:43523 WP No. 4343 of 2018

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The Labour Court extenso referred to the material on record and concluded that applicant has not furnished any material to come to a definite conclusion that he is entitled for Rs.11,34,888/- (Rupees Eleven Lakh Thirty Four Thousand Eight Hundred and Eighty Eight only) towards full salary from 25.03.2009 to 17.12.2014. The Labour Court also concluded that the applicant has not produced any salary slip or salary certificate to show his basic, D.A., and other allowances as on the date of his dismissal. However, it went ahead and directed the Corporation to calculate and pay the salary to the applicant from 25.03.2009 to 17.12.2014. This is incorrect. There is no basis to claim such amount. The direction to calculate and pay the salary appears to be based on misconception.

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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.

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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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6 - NC: 2023:KHC:43523 WP No. 4343 of 2018

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TRANSPORT CORPORATION, BANGALORE VS SK ATHANI

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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 full wages. But it is relevant to note that there has been no adjudication. The Corporation has disputed the entitlement of the applicant to claim full 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 directed the Corporation to calculate and pay the wages in a proceeding under Section 33 C (2) of the I.D Act.

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I may venture to say that the Labour Court has failed to have regard to relevant consideration and disregarded relevant matters. For the reasons stated above, the order of the Labour Court is liable to be set-aside. Accordingly, it is set-aside.

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NC: 2023:KHC:43523 WP No. 4343 of 2018

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The Writ of Certiorari is ordered. The order dated:12.08.2017 passed by the III Addl. Labour Court, Bengaluru in Application No.07/2015 vide Annexure-C is

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quashed.

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Resultantly, the Writ Petition is allowed .

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 18

The Chief Security & Vigilance Officer v. Sri Hamsagiri C M

Case brief

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The Chief Security & Vigilance Officer v. Sri Hamsagiri C M

Case brief

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