Allowed

The Management of v. Sri. Mahesh Gowda

Karnataka HC1 Feb 2024WP/28024/2018

Case brief

AI extract

What is this about?

Corporation challenged the Industrial Tribunal's rejection of its application under Section 33(2)(b) of the ID Act. The Tribunal had dismissed the application as mandatory wage payment wasn't proved. High Court allowed the writ, set aside the order, and remitted the matter for fresh consideration because the Tribunal was unjustified in dismissing it without examing evidence of wage payment.

What did the court decide?

Impugned Order set aside; matter remitted to Tribunal for fresh consideration in accordance with law; reinstatement of the workman ordered pending disposal.

The Management of Vs Sri. Mahesh Gowda — Service and Employment | Karnataka HC (2024)

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1 - NC: 2024:KHC:4500 WP No. 28024 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 28024 OF 2018 (L-TER)

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BETWEEN:

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THE MANAGEMENT OF M/S BANGALORE METROPOLITAN TRANSPORT CORPORATION, REPRESENTED BY ITS DIVISIONAL CONTROLLER, BANGALORE NORTH DIVISION, YESHWANTAPURA, BANGALORE - 560 022, HEREIN REPRESENTED BY THE CHIEF LAW OFFICER B.M.T.C., CENTRAL OFFICES K.H.ROAD, SHANTHINAGARA, BANGALORE - 560 027. …PETITIONER

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(BY SRI. B.L. SANJEEV, ADVOCATE)

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. MAHESH GOWDA, AGE: MAJOR, R/O THOTLIGANHALLI, NAGAMANGALA POST, SHIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT.

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…RESPONDENT

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(BY SRI. SUBRAMANYA BHAT M, ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR

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NC: 2024:KHC:4500 WP No. 28024 of 2018

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RECORDS OF THE PROCEEDINGS OF THE INDUSTRIAL TRIBUNAL, BANGALORE PERTAINING TO SL. APPLICATION NO.958/2013, WHICH HAS CULMINATED IN ITS ORDER DATED 02.04.2018 VIDE ANNX-E AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner-Corporation is assailing the impugned order dated 02.04.2018 in Sl. Application No.958/2013 on the file of Industrial Tribunal, Banglore, whereby the application filed by the Corporation under Section 33(2)(b) of the Industrial Dispute Act, 1947(for short 'ID' Act) seeking for approval of the dismissal of the workman from service came to be rejected.

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Heard the learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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Tribunal rejected the application filed by the Corporation on the ground that the Corporation has not

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produced any evidence to show that what was the wage of

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the workman preceding the month of dismissal Order and arrived at a conclusion that the applicant-Corporation has failed to prove the compliance of mandatory ingredients under Section 33(2)(b) of the ID Act. Section 33(2)(b) of the ID Act contemplates as under:

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"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.

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(1) XXX

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(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute.

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(a) XXX

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(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

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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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4. The opening words of proviso to Section

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33(2)(b) require the employer to perform its conditions in

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the manner and at the time as laid down therein.

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4 - NC: 2024:KHC:4500 WP No. 28024 of 2018

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The proviso contemplates three things, namely,

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(i) action of discharge or dismissal;

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(ii) payment of wages for one month and

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(iii) making of an application for “approval” of the action taken.

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These conditions are of mandatory nature and if

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any of these has not been complied with by the employer, the application for “approval” would be liable to be dismissed. The authority before whom the application is made, in the first instance is required to examine as to whether three conditions have been fulfilled. If it finds that any of these conditions has not been fulfilled, he will have to dismiss the application and refuse to grant approval. In such situation, it would not be open to the authority to deal with the application on merits. The effect of refusal of grant of approval, “would be that the action taken by the employer would be void and inoperative”. The compliance with this conditions is a condition precedent for dealing with an application for approval on

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merits by the Tribunal. In other words, it is only on being satisfied that this condition has been simultaneously complied with, that the Tribunal will consider the application for grant of approval on merits. If, therefore, the action of discharge or dismissal, payment of wages for one month and filing of the application for approval or not simultaneous and part of the same transaction, the Tribunal will reject the application straight away without going into merits of the case for approval.

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It is now well settled that while deciding an application under Section 33(2)(b), the plea of contravention of the requirement of the proviso thereto have to specifically pleaded by the workman. In other words, the workman has to plea that one month’s wages has not been paid or the application approval has not been made at the time of his discharge or dismissal. In the absence of such pleading, it cannot be permitted to raise objections at the time of arguments, because the employer will be taken by surprise and will have no

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NC: 2024:KHC:4500 WP No. 28024 of 2018

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opportunity to explain non-compliance or delay by adducing relevant evidence.

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The Corporation has stated through witness AW-2 that the last month wage drawn Rs.6,605/- was paid to the workman and produced Ex.A-20. The contentions of the workman in his objections is that mandatory precondition under Section 33(2)(b) of the ID Act, the management has failed to pay one month full wages and further that workman was getting Rs.7,000 per month. The Tribunal on the assumption that salary is more than the amount paid in compliance of 33(2)(b) dismissed the application. The impugned order does not indicate about the material available. The applicant having stated through the witness that the workman salary to indicate the workman was withdrawing more salary. In the said circumstance, the Tribunal was not justified in holding that the mandatory ingredients of ID Act was not complied. The manner in which the Order has been passed by the Tribunal warrants interference by this Court and matter

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requires to be remitted back to the Tribunal for fresh consideration regarding compliance of the mandatory ingredients as envisaged under Section 33(2)(b) in accordance with law, the domestic enquiry findings is not interfered with. Accordingly, this Court pass the following:

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ORDER

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i. Writ petition is allowed .

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ii. Impugned Order passed by the Industrial Tribunal, Bangalore, is hereby set aside.

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iii. Parties to be appear before the Tribunal on 20.02.2024 .

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iv. The matter is remitted back to the Tribunal for fresh consideration in accordance with law.

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v. Tribunal is directed to dispose of the Sl. Application No.958/2013 as expeditiously as possible not later than three months.

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vi. Pursuant to the Interim order granted by this Court, the respondent-workman has been reinstated. The reinstatement to be continued, if he still working, till disposal of the Sl. Application No.958/2013 under Section 33(2)(b) of the ID Act.

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Sd/JUDGE

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AT List No.: 1 Sl No.: 33 CT: BHK

The Management of v. Sri. Mahesh Gowda

Case brief

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The Management of v. Sri. Mahesh Gowda

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