Allowed

Karnataka State Road v. R C Venkateshagowda

Karnataka HC26 Oct 2023WP/58116/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing an Industrial Tribunal award. The Tribunal had adjudicated a dispute revived seven years after a Revisional Authority ordered reinstatement. The Court held the dispute was stale due to unexplained inordinate delay and lack of proof regarding the workman's reliance on a representation to management.

What did the court decide?

The award of the Industrial Tribunal dated 23.12.2017 in I.D.No.226/2010 is quashed and the order of the Revisional Authority dated 14.10.2003 is confirmed.

Karnataka State Road Vs R C Venkateshagowda — Service and Employment | Karnataka HC (2023)

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1 - NC: 2023:KHC:38045 WP No. 58116 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.58116 OF 2018 (L-KSRTC)

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BETWEEN:

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KARNATAKA STATE ROAD TRANSPORT CORPORATION, BANGALORE RURAL DIVISION, MYSORE ROAD, BANGALORE - 560 026. BY ITS DIVISIONAL CONTROLLER, REPRESENTED BY ITS CHIEF LAW OFFICER.

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THE DIVISIONAL CONTROLLER K.S.R.T.C., KOLAR DIVISION, KOLAR - 563 101. REPRESENTED BY ITS CHIEF LAW OFFICER.

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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THE DIRECTOR (P AND E), REVISION AUTHORITY, K.S.R.T.C., CENTRAL OFFICE, K.H.ROAD, BANGALORE - 560 027, REPRESENTED BY ITS CHIEF LAW OFFICER.

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…PETITIONERS

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

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AND:

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R.C.VENKATESHAGOWDA S/O T.CHANNEGOWDA, C/O GENERAL SECRETARY, KSRTC & BMTC UNITED EMPLOYEES UNION, NO.23, 4^TH MAIN ROAD, MATHIKERE EXTENSION, BANGALORE - 560 054. …RESPONDENT (BY SRI. L.SHEKAR., 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 is a Conductor in the establishment of the Corporation. He was on duty on 19.09.1997 in the bus that belonged to the Corporation. The bus was plying on the route from Kolar to Sarjapura. The bus came to be checked by the Checking Officials at Karinayakanahalli and it was found that the respondent had committed certain irregularities. Hence, he was issued with Articles of charge. He submitted his reply. A detailed inquiry was conducted by the inquiry officer and charges were held to be proved. The respondent was dismissed from service on 30.03.2002.

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The respondent filed an appeal against the order of dismissal. The Appellate Authority vide order dated:16.04.2003 rejected the appeal. The respondent filed a Revision Petition before the Revisional authority requesting to review the order of punishment. The Revisional Authority vide order dated:14.10.2003 modified the order of dismissal by directing reinstatement of the respondent as a Fresher.

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As things stood thus, the respondent after a lapse of seven years sought to challenge the order of Revisional Authority by raising a dispute. The dispute raised by the respondent came to be referred for adjudication to the Industrial Tribunal, Bengaluru in I.D.No.226/2010. The Industrial Tribunal vide award dated:23.12.2017 held that the order of Revisional Authority is harsh, discriminatory in nature, hence modified the order of Revisional Authority by directing reduction of two increments for a period of two years with cumulative effect. 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 also the records with utmost care.

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The following points would arise for consideration:

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(1) Whether the Industrial Tribunal justified in concluding that there is no delay and laches in raising the dispute and thus the dispute is not stale?

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(2) Whether the award of the Industrial Tribunal requires interference?

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The facts have been sufficiently stated and do not require reiteration. Suffice it to note that the respondent workman came under a disciplinary inquiry proceedings. He was visited with an order of punishment i.e., he was dismissed from service.

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It is pivotal to note that the delinquent challenged the order of dismissal and the Revisional Authority modified the order of dismissal and directed reinstatement of the respondent as a Fresher. The Revisional Authority passed the order back in

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the year 2003 i.e., on 14.10.2003. The delinquent accepted the order of reinstatement as a Fresher and he attended and discharged his duty as a Fresher from the date of the order passed by the Revisional Authority without any demur. Strangely, he raised a dispute after a lapse of seven years contending that the order of the Revisional Authority directing reinstatement as a Fresher is untenable.

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In the claim statement, he has stated that he has submitted a representation to the Managing Director, KSRTC, Bengaluru and the Managing Director did not give any reply, hence he had no option except to approach the Union to raise a dispute. Hence, he sought to contend that if there is any delay in raising the dispute, the same may be condoned. The Corporation filed its counter statement and sought for the rejection of the reference mainly on the grounds of delay and laches. The Corporation has specifically contended that the workman questioned the order of the Revisional Authority after a lapse of seven years without assigning sufficient reasons. The Tribunal referred to the material on record and condoned the delay of seven years solely on the ground that the workman had submitted a representation before the Managing Director

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and the Managing Director did not reply for the same, hence the dispute is alive and proceeded to adjudicate the dispute.

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Smt.H.R.Renuka., learned counsel appearing on behalf of the Corporation in presenting her arguments vehemently contended that the Industrial Tribunal has erred in adjudicating the dispute. She argued by saying that there is an inordinate delay of seven years in raising the dispute. The Tribunal ought to have rejected the claim on the grounds of delay and laches. She drew the attention of the Court to the decision of the Hon'ble Apex Court in PRABHAKAR Vs. JOINT

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DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER

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reported in (2015) 15 SCC 1 . Learned counsel submitted that she is not urging any contentions on the merits of the case and requested the Court to give finding only on delay and laches.

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By way of reply, learned counsel Sri.L.Shekar., submits that assuming for a while that there is a delay and laches in raising the dispute, the Labour Court/ Tribunal can mould the relief and pass the award. He argued by saying that even in the present case also, the Tribunal referred to the material on record and condoned the delay and adjudicated the dispute on

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the merits of the case. Hence, he sought to justify the award passed by the Industrial Tribunal.

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Learned counsel Sri.L.Shekar., relied upon the following decisions.

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

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2. SHAHAJI VS. EXECUTIVE ENGINEER, P.W.D - 2005 III LLJ 522.

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3. KARAN SINGH VS. EXECUTIVE ENGINEER HARYANA STATE MARKETING BOARD - MANU/SC/3932/2007.

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4. PRABHAKAR Vs. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER - (2015) 15 SCC 1.

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5. DIVISIONAL CONTROLLER, CHIKKABALLAPURA DIVISION VS. SRI.R.SRIRAM REDDY - W.P.NO.19464/2012 DISPOSED OF ON 13.07.2016.

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A good deal of argument is canvassed on delay and laches and also about the representation submitted by the workman to the Managing Director. It is not in dispute that on account of proved misconduct, the respondent was dismissed from the service on 30.03.2002. However, the Revisional Authority modified the order of punishment and directed reinstatement of respondent as a Fresher in the year 2003. It is pivotal to note that the respondent accepted the order of reinstatement as a Fresher and attended and discharged his duty from the date of the order of Revisional Authority without resistance. Strangely, after a lapse of almost seven years he raised the dispute and sought to condone the delay on the ground that he had submitted a representation to the Managing Director and there was no reply by the Managing Director.

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The respondent furnished the Xerox copy of the representation which appears to have been submitted to the Managing Director, KSRTC, Bengaluru. The same was marked as Document No.W2. It is dated:25.10.2003. A perusal of the same would reveal that the workman has narrated the statement of facts and has made a request to revisit the order passed by the Revisional Authority. The alleged representation

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does not bear the seal of the Corporation for having received the same. There is nothing on record to show that the Corporation received the alleged representation.

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As already noted above, the workman sought to condone the delay on the ground of submission of the representation to the Managing Director. However, in the cross examination, he stated that he requested the Depot Manager, Kolar to forward the representation to the Managing Director, KSRTC, Bengaluru. He has also stated that he does not remember the name of the Depot Manager while he was working in Kolar Depot as a Conductor. He also admitted that Document W2 does not bear the seal of the Corporation.

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If we look into the contents of the claim statement and the cross examination of the workman, it would reveal that the workman has taken dual stand. In the claim statement, he states that he has given representation to the Managing Director, KSRTC, Bengaluru to revisit the order of Revisional Authority. On the other hand in the cross examination, he states that he has given representation to the Depot Manager, Kolar. This aspect of the matter has been overlooked by the

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Tribunal. The Tribunal has taken note of the contents in the claim statement and has erroneously concluded that the workman has submitted a representation to the Managing Director, KSRTC, Bengaluru and hence the dispute is alive and proceeded to adjudicate the dispute, which in my opinion is unsustainable in law.

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Furthermore, the Apex Court in PRABHAKAR VS.

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JOINT DIRECTOR, SERICULTURE DEPARTMENT AND

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ANOTHER reported in (2015) 15 SCC 1 has held as under:

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"42.6. In contrast, in those cases where there was no agitation by the workman against his termination, 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 make reference. 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

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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 inasmuch 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 on the employers' financial arrangement and to avoid dislocation of an industry."

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Reverting to the facts of the case, the order of punishment was passed back in the year 2002. The Revisional Authority modified the order of dismissal by directing reinstatement of the respondent as a Fresher. The respondent accepted the same and attended and discharged his duties as a Fresher without resistance. However, the respondent chose to challenge the order of Revisional Authority after a lapse of seven years. There is an inordinate delay in raising the dispute. The dispute had become stale as of the date of the adjudication, hence the Tribunal ought to have rejected the claim on the grounds of delay and laches.

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As already noted above, in the present case the specific contention of the Corporation was about the rejection of reference on the grounds of delay and laches. The Apex

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Court in PRABHAKAR 's case has laid down the law back in the year 2015 that when there is no agitation by the workman against his termination and the dispute is raised belatedly and the delay and laches remained unexplained, it should be presumed that he had waived his right. It is also observed that at the time when the dispute is raised it had become stale and was not an existing dispute. Even in the present case also, the order of the Revisional Authority directing reinstatement of workman as a Fresher was passed back in the year 2003. At the cost of repetition, I may venture to say that the workman accepted the order and attended and discharged his duties as a Fresher. However, he raised a dispute after a lapse of seven years. The reasons and the contentions accorded to condone the delay and laches on the ground that he had submitted a representation to the Managing Director is also not proved by the workman. It is needless to say that the respondent accepted the order and discharged the duties as a Fresher.

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Hence, he is estopped from contending that the order as a Fresher is untenable.

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In the last resort learned counsel Sri.L.Shekar., submits that even if there is a delay, the Tribunal/ Labour Court can mould the relief and pass the award. Counsel placed reliance on the decisions referred to supra. I have perused the same with utmost 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. The decision of SHAHAJI VS. EXECUTIVE ENGINEER, P.W.D reported in 2005 III LLJ 522 is not applicable to the facts and circumstances of the present case. The reason is apparent. In SHAHAJI 's case, the Management did not take the grounds of delay and laches. But in the present case, there is a specific contention regarding delay and laches. In KARAN SINGH 's case, there is no delay. The order passed by the Coordinate Bench in W.P.No.19464/2012 is not applicable to the facts and circumstances of the present case.

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To conclude, I can say only this much that the Tribunal has failed to have regard to relevant consideration and disregarded relevant matters. In any view of the matter, the

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award of the Industrial Tribunal cannot be sustained. The Award of the Industrial Tribunal is otherwise erroneous and unjust. Since the reference 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 Writ Petition deserves to be allowed.

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The Writ of Certiorari is ordered. The award dated:23.12.2017 passed by the Industrial Tribunal, Bengaluru in I.D.No.226/2010 vide Annexure-F is quashed. The order dated:08/14.10.2003 passed by the Revisional Authority is confirmed.

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15. Resultantly, the Writ Petition is allowed .

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TKN List No.: 2 Sl No.: 15

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Sd/JUDGE

Karnataka State Road v. R C Venkateshagowda

Case brief

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Karnataka State Road v. R C Venkateshagowda

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