Allowed

Karnataka State Road v. S Mallesha

Karnataka HC2 Nov 2023WP/60764/2014

Case brief

AI extract

What is this about?

In this writ petition, the High Court quashed an Industrial Tribunal award that had set aside a punishment order against a bus driver. The Court held that the five-year delay in raising the dispute rendered it stale without satisfactory explanation, applying the Supreme Court's precedent in Prabakar.

What did the court decide?

The award dated 18.01.2014 passed by the Industrial Tribunal is quashed, and the order of punishment dated 28.03.2007 is confirmed.

Karnataka State Road Vs S Mallesha — Labour and Industrial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:38898 WP No. 60764 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.60764 OF 2014 (L-KSRTC)

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BETWEEN:

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KARNATAKA STATE ROAD TRANSPORT CORPORATION, MYSORE RURAL DIVISION, MYSORE, BY ITS DIVISIONAL CONTROLLER, REP. BY ITS CHIEF OFFICER.

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…PETITIONER

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

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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S.MALLESHA, AGED ABOUT 45 YEARS, DRIVER, REP. BY THE VICE PRESIDENT, KARNATAKA STATE ROAD TRANSPORT, CORPORATION EMPLOYEES UNION, (INTUC), NO.460, 5^TH CROSS, G BLOCK, RAMAKRISHNANAGARA, MYSORE - 570 023.

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…RESPONDENT

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(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 HEARING, 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 Driver in the establishment of the Corporation. On 05.01.2006 he was on duty in the bus that belonged to the Corporation. The bus was plying on the route from Kudlipet to Mysore. It is said that he caused an accident by hitting the bus against a cyclist as a result the cyclist succumbed to injuries. 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 imposed with an order of punishment dated:28.03.2007 reducing his pay by three incremental stages with cumulative effect and his one-month salary of Rs.6,569/- (Rupees Six Thousand Five Hundred and Sixty Nine only) was ordered to be recovered in fifteen equal installments.

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As things stood thus, after a lapse of five years the respondent raised a dispute. The dispute raised by the respondent came to be referred for adjudication to the Industrial Tribunal, Bengaluru in Ref.No.44/2012. The Industrial Tribunal held that the domestic inquiry conducted by the Corporation was fair and proper. Industrial Tribunal vide award dated 18.01.2014 set aside the order of 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

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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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(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 require interference?

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The facts have been sufficiently stated and do not require reiteration. The issue revolves around delay and laches.

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Suffice it to note that the respondent came under disciplinary inquiry proceedings. He was visited with an order of punishment back in the year 2007. Strangely, he raised a dispute after a lapse of five years contending that he had requested the Corporation to re-visit the punishment order and withdraw the same.

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In the claim statement, he states that he had requested the Corporation to revisit the punishment order and it is also stated by him that he had requested through Union. 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 the rejection of the reference on the grounds of delay and laches. The Corporation has specifically contended that the respondent questioned the order after a lapse of five years without assigning sufficient reasons. It is relevant to note that the Tribunal referred to the material on record and concluded that it is not proper to ignore the delay however, erroneously proceeded to condone the delay

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solely on the ground that no prejudice would be caused to the Corporation and 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 had erred in adjudicating the dispute. She argued by saying that there is an inordinate delay of five 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 DIRECTOR, SERICULTURE DEPARTMENT AND ANOTHER 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 a 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

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record, condoned the delay and adjudicated the dispute on 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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6. MANAGING DIRECTOR, JK HANDICRAFTS Vs. AGA SYED MUSTAFA AND ANOTHER - JAMMU AND KASHMIR HIGH COURT - 2023 LLR 1075.

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7. BENGALURU METROPOLITAN TRANSPORT CORPORATION VS. M.C.KARIYAPPA - 2015 ILR 1269.

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A good deal of argument is canvassed on delay and laches and about requests made by the respondent to the Corporation through Union. It is not in dispute that on account of proved misconduct, the respondent was visited with an order of punishment back in the year 2007. Strangely, after a lapse of almost five years, he raised the dispute and sought to condone the delay on the ground that he had requested the Management to withdraw the order of punishment.

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An attempt is made on behalf of the respondent to contend that he was agitating his rights before the Conciliation Officer. Learned counsel for the respondent had sought time to furnish the particulars about the proceedings before the Conciliation Officer. Accordingly, time was granted by this Court. Despite granting time, the respondent has not furnished the particulars and he has failed to substantiate the said contention. Hence, the contention about agitation of rights before the Conciliation Officer must necessarily fail.

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The Tribunal has taken note of the contents in the claim statement and has erroneously concluded that no prejudice will be caused to the Corporation and erroneously condoned the

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delay and proceeded to adjudicate the dispute. This is unsustainable in law. What is required to be considered is whether the respondent has made out sufficient grounds to condone the delay. The Tribunal has overlooked the same and erroneously proceeded in the matter.

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9. Furthermore, the Apex Court in PRABHAKAR VS. JOINT DIRECTOR, SERICULTURE DEPARTMENT AND

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

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" 42.1. 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

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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 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

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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 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

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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 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

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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

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not be generally encouraged or allowed in as much 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 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, the order of punishment was passed back in 2007. However, the respondent chose to challenge the same after a lapse of five 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 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 the dispute is raised belatedly and the delay and laches remains unexplained, it should be presumed that he had waived his right. It is also observed that at the

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time when the dispute was raised, it had become stale and was not an existing dispute.

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In the last resort, learned counsel Sri.L.Shekar., submits that even if there is a delay, the Tribunal/ Labor Court can mould the relief and pass the award. Counsel placed reliance on the decisions referred to supra. Perused the same with utmost care. In AJAIB SINGH 's case, the Apex Court has held that in case there is a delay, the Labor Court/ Tribunal can mould the relief by declining the grant of back wages. Therefore, moulding of relief is restricted to denial of back wages only and not setting aside the order of punishment. The decision of SHAHAJI’s case does not apply 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 relied on KARAN SINGH 's case.

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But it is relevant to notice that in KARAN SINGH 's case, there is no delay and hence the case does not apply to the facts and circumstances of the present case. The decision of the Jammu

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and Kashmir High Court relates to retrenchment. The present case does not relates to retrenchment. Hence, the decision of Jammu and Kashmir High Court is not applicable to the facts and circumstances of the present case. So also the decision reported in M.C.KARIYAPPA 's case is also not applicable.

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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 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 18.01.2014 passed by the Industrial Tribunal, Mysore in Reference No.44/2012 vide Annexure-D is quashed. The order of punishment dated:28.03.2007 is confirmed.

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14. Resultantly, the Writ Petition is allowed .

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In view of disposal of Writ Petition, interim order if any granted by this Court stands discharged and all pending interlocutory applications are disposed of.

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Sd/JUDGE

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MRP List No.: 1 Sl No.: 12

Karnataka State Road v. S Mallesha

Case brief

What is this about?

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Karnataka State Road v. S Mallesha

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