Partly allowed

Hanamant S/O. Shankar Patil v. the Management Nwkrtc

Karnataka HC12 Dec 2023WP/72469/2012

Case brief

AI extract

What is this about?

The High Court dealt with two writ petitions challenging an Industrial Tribunal's award regarding termination and back wages. The Court found the termination illegal under the Industrial Disputes Act but declined full reinstatement due to the employee's superannuation age. The Employer was directed to pay 50% back wages and benefits.

What did the court decide?

The impugned order of the Tribunal was modified to direct the employer to pay 50% of back wages and other consequential service benefits to the employee within four months.

Hanamant S/O. Shankar Patil Vs the… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:14584 WP No. 72469 of 2012 C/W WP No. 63246 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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WRIT PETITION NO. 72469 OF 2012 (L-KSRTC) C/W WRIT PETITION NO. 63246 OF 2011

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IN WP NO.72469/2012

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BETWEEN:

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SRI. HANAMANT S/O. SHANKAR PATIL AGE: 59 YEARS, OCC: NIL, R/O. AT POST: YELLUR, PATIL GALLI, TQ & DIST: BELGAUM.

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…PETITIONER

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(BY SRI. RAVI HEGDE, ADVOCATE)

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AND:

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.12.16 13:44:37 +0530

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THE MANAGEMENT OF NWKRTC, BELGAUM DIVISION, REPTD. BY ITS DIVISIONAL CONTROLLER, BELGAUM DIVISION, BELGAUM.

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…RESPONDENT

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(BY SMT. SHASHIKALA L. DESAI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION OR ORDER, QUASHING THE AWARD PASSED BY ADDL. LABOUR COURT, HUBLI IN KID.NO.29/2007 DATED 31/08/2010, TO THE EXENT THE PETITIONER IS AGGRIEVED, WHICH IS PRODUCED AS ANNEXURE-F AND CONSQUENT TO THE QUASHING OF THE AWARD ISSUE A WRIT OF MANDAMUS OR ANY OTHER WRIT OR ORDER OF DIRECTING THE RESPONDENT TO PAY THE FULL BACK

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2 - NC: 2023:KHC-D:14584 WP No. 72469 of 2012 C/W WP No. 63246 of 2011

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WAGES AND OTHER CONSEQUENTIAL BENEFITS TO THE PETITIONER.

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IN WP NO.63246/2011

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BETWEEN:

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THE MANAGEMENT OF NWKRTC, BELGAUM DIVISION, REPTD. BY ITS DIVISIONAL CONTROLLER, BELGAUM DIVISION, BELGAUM. R/BY, THE MANAGING DIRECTOR, NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBLI.

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…PETITIONER

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(BY SMT. VINUTA M. KHANNUR, ADV. FOR SRI. MADANMOHAN M. KHANNUR, ADVOCATE)

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AND:

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SRI. HANAMANT S/O. SHANKAR PATIL AGE: 54 YEARS, OCC: NIL, R/O. PATIL GALLI, AT & PO: YELLUR, TQ & DIST: BELGAUM.

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…RESPONDENT

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(BY SRI. RAVI HEGDE, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER OF REINSTATE BE QUASHED THROUGH AWARD PASSED BY DJ AND THE PRESIDENT OFFICER AND ADDL. LABOUR COURT, HUBLI IN KID.NO.29/2007 DATED 31/08/2010 IN THE ENDS OF JUSTICE AND EQUITY OF ANNEXURE-F.

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THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS

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DAY, THE COURT MADE THE FOLLOWING:

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NC: 2023:KHC-D:14584 WP No. 72469 of 2012 C/W WP No. 63246 of 2011

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ORDER

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Heard.

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Two petitions are filed challenging the award passed by the Additional Labour Court, Hubballi in KID No.29/2007. The employer-NWKRTC is before this Court challenging the order setting aside the order of termination of employee and other consequential benefits granted to the employee. The employee is before this Court challenging the order denying back wages and other consequential benefits.

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Learned counsel for the employer justifying the petition would submit that the employee was unauthorizedly absent while he was in service and this aspect is duly proved in terms of the enquiry report at Annexure-D. Learned counsel for the employer would invite attention of this Court to the enquiry report by the disciplinary authority and would contend that the employer has taken a proper decision to terminate the service of the

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NC: 2023:KHC-D:14584 WP No. 72469 of 2012 C/W WP No. 63246 of 2011

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employee for unauthorized period of absence from 08.01.2006 to 18.01.2007.

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It is the contention of the learned counsel for the employer that since the employee was unauthorizedly absent for a period of 1 year, the order of termination of the employee is justified, as such, would contend that the Additional Labour Court could not have set aside the order of termination.

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Learned counsel for the employee would submit that order of termination is illegal under Section 33(2)(b) of the Industrial Disputes Act, 1947 as the employer violated the said provision. When the disciplinary enquiry was pending against the employee, there was an industrial dispute at I.D.No.148/2005 and taking note of the pendency of industrial dispute, the competent authority has issued communication dated 13.08.2011 informing the concerned authority not to discharge/terminate the service of any employee pursuant to the disciplinary enquiry without obtaining necessary sanction as contemplated

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under the provisions of the Industrial Disputes Act. It is further stated that on 18.01.2007, article of charges were issued to the petitioner providing 10 days time to reply to the said article of charges. Without awaiting for the reply, the disciplinary officer is appointed on the same day. Thus, he would contend that entire proceeding is vitiated.

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He would also contend that since the termination order is passed in violation of Section 33(2)(b) of the Industrial Disputes Act, the order terminating the employee is non-est in the eyes of law and would contend that the issue is covered by the judgment of the Division Bench of this Court in W.A.No.100366/2014 and W.A.No.5738/2012 and the entire back wages and other consequential relief are to be given to the petitioner.

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This Court has considered the contentions raised at the bar.

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There is no dispute that the employee was appointed as driver by the employer. The disciplinary

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NC: 2023:KHC-D:14584 WP No. 72469 of 2012 C/W WP No. 63246 of 2011

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enquiry came to be initiated on the premise that employee was unauthorisedly absent from 08.01.2006 to 18.01.2007. The employee claims that he was suffering from spinal cord injury and he has submitted an application for leave along with medical records to justify his claim for leave but the same was not granted.

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The disciplinary officer after holding enquiry has found that the employee is guilty and terminated his services. This order was called in question before the Industrial Tribunal. The evidence was led before the Tribunal. The Industrial Tribunal has noticed the fact that article of charges was issued on 18.01.2007 and enquiry officer was appointed on the same day, without affording an opportunity to the workman. The Industrial Tribunal has come to the conclusion that this amounts to biased attitude on the part of the employee. The Industrial Tribunal has relied on the judgment of the Apex Court in

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State of Punjab Vs. V.K.Khanna and others, AIR 2001 SC 343 and has come to the conclusion that haste

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shown by the employer reflects the bias against the employee. Considering this aspect, the Tribunal has concluded that penalty for termination of services has to be set aside and accordingly, it was set aside and employee was ordered to be reinstated. However, the Tribunal has declined to grant back wages to the employee.

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Section 33(2)(b) of the Industrial Disputes Act reads as under:

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“33(2)(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. ”

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On a reading of the aforementioned provision, it

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is apparent that in case any Industrial dispute is pending, then the employer shall not discharge/terminate the employee from the service without there being any opinion

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by the competent authority. The law in this regard is well settled and accordingly, in the judgments referred to above, the Division Bench has taken a similar view and there is no dispute over the fact that Industrial Tribunal in I.D. No.148/2005 was pending when the enquiry was conducted and the order of termination was passed against the employee.

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This being the position, the impugned order of termination is non-est in the eyes of law. Hence, the order of the Industrial Tribunal setting aside the order of termination of the employee is justified. Applying the ratio laid down in the aforementioned cases, where the Court has concluded if the disciplinary enquiry is non-est in the eyes of law and consequential benefit of back wages and other consequential service benefit ought to be granted to the employee, and the same is not granted, this Court finds that the petition filed by the employee has to be allowed.

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It is further stated that employee has attained

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the age of superannuation, as such, there cannot be an order reinstating the employee.

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Sri.Ravi Hegde, the learned counsel for the employee on instructions submits that employee will only claim 50% back wages having regard to the fact that he has served under the employer. Accordingly, the petition filed by the employer has to be allowed in part.

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