Partly allowed

Mehboobsab Ghousemodin v. Divisional Controller

Karnataka HC8 Jul 2024WP/77629/2013

Case brief

AI extract

What is this about?

Three writ petitions were filed regarding a workman’s dismissal and dues. The High Court set aside the Industrial Tribunal’s rejection of the corporation’s re-engagement application and the Labour Court’s order for dues on the ground of jurisdictional excess. The workman’s reinstatement petition was disposed of pending the liberty to challenge dismissal.

What did the court decide?

The writ petitions filed by the corporation were allowed. The impugned orders of rejection of the re-engagement application and the payment of dues were set aside. Liberty was reserved to the workman

Mehboobsab Ghousemodin Vs Divisional Controller — Service and Employment | Karnataka HC (2024)

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NC: 2024:KHC-D:9347 WP No. 110280 of 2016 C/W WP No. 77629 of 2013 WP No. 79598 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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WRIT PETITION NO.110280 OF 2016(L-KSRTC) C/W WRIT PETITION NO.77629 OF 2013 WRIT PETITION NO.79598 OF 2013

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IN WP.NO.110280/2016:

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BETWEEN:

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THE MANAGEMENT OF NWKRTC, HUBBALLI DIVISION, REPRESENTED BY ITS DIVISIONAL CONTROLLER, HUBBALLI DIVISION, HUBBALLI, THE PETITIOENR REPRESENTED BY THE CHEIF LAW OFFICER, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI - 580 030.

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…PETITIONER

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(BY SRI PRASHANT HOSMANI, ADVOCATE)

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AND:

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Digitally signed by V N BADIGER Location: High Court of Karnataka

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MEHABOBSA S/O. GOUSEMODIN KHANASABWALE, AGED ABOUT 54 YEARS, OCC: NOT KNOWN, R/O: AMARGOL, TQ: HUBBALLI, DIST: DHARWAD.

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…RESPONDENT

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(BY SRI H. R. GUNDAPPA, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED 06.02.2014 PASSED BY THE PRESIDING OFFICER, LABOUR COURT, AT HUBBALLI IN APPLICATION NO.1/2013 PRODUCED HEREWITH AS ANNEXURE-C AND ETC.,

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NC: 2024:KHC-D:9347 WP No. 110280 of 2016 C/W WP No. 77629 of 2013 WP No. 79598 of 2013

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IN WP.NO.77629/2013:

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BETWEEN:

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SHRI MEHBOOBSAB GHOUSEMODIN, KHANSABAWLE S/O. GHOUSEMODIN, AGED ABOUT 50 YEARS, OCC:NIL, R/O: AMARGOAL, AT POST: HUBBALLI. TQ – 580 025, DIST: DHARWAD.

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…PETITIONER

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(BY SRI H. R. GUNDAPPA, ADVOCATE)

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AND:

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DIVISIONAL CONTROLLER, NWKRTC, HUBBALLI DIVISION, GOKUL ROAD, HUBBALLI – 580 029.

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…RESPONDENT

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(BY SRI PRASHANT S. HOSMANI, ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENT-CORPORATION TO REINSTATE THE PETITIONER INTO SERVICE, WITH FULL BACK WAGES IN CONTINUITY OF SERVICE ALL OTHER CONSEQUENTIAL BENEFITS AS PER ANNEXURES-A AND B AND ETC.,

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IN WP.NO.79598/2013:

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BETWEEN:

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THE DIVISIONAL CONTROLLER NWKRTC, HUBBALLI DIVISION, HUBBALLI, REPRESENTED BY ITS CHIEF LAW OFFICER, NWKRTC CENTRAL OFFICE, HUBBALLI.

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…PETITIONER

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(BY SRI PRASHANT S. HOSMANI, ADVOCATE)

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AND:

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MEHABOOBASAB S/O. GHOUSEMODIN KHANSABWALE, AGED ABOUT: 55 YEARS, OCC: CONDUCTOR, R/O: AMRAGOL, TQ: HUBBALLI, DIST: DHARWAD. …RESPONDENT

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(BY SRI H. R. GUNDAPPA, ADVOCATE)

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NC: 2024:KHC-D:9347 WP No. 110280 of 2016 C/W WP No. 77629 of 2013 WP No. 79598 of 2013

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI THERE BY QUASHING THE ORDER DATED: 12/07/2012 PASSED BY THE INDUSTRIAL TRIBUNAL BANGALORE IN SERIAL APPLICATION NO.112/2011 THE COPY OF THE SAME IS PRODUCED AND MARKED AS ANNEXURE-C TO THE WRIT PETITION AND CONSEQUENTLY BE PLEASED TO ALLOW THE SERIAL APPLICATION NO.112/2012 FILED BY THE PETITIONER ON THE FILE OF INDUSTRIAL TRIBUNAL BANGALORE AND ETC.,

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These petitions raise common facts and issues for consideration.

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Workman-Mehaboobsab S/o. Gousemoddin

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Khansabwale was admittedly employed by NWKRTC (for short, hereinafter referred to as ‘corporation’), to the post

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of Conductor and was discharging his services at Hadagali Depot, Ballari Division.

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It is alleged that while he was discharging his service on 30.05.1994 as a Conductor enroute Hospet to Kudithini, upon inspection made by the officials of the corporation it was found that a passenger was not issued with the ticket of Rs.10/-. It is the further allegation that

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the workman instigated the passengers and he himself misbehaved with the officials. Article charges were issued and Disciplinary Authority appointed an Enquiry Officer to enquire into the matter. Enquiry Officers were changed on four occasions between the year 1994 to 2008 for various administrative reasons. However, report was submitted by the fourth and the last Enquiry Officer holding that the guilt of the workman was proved. On 08.10.2009 Disciplinary Authority issued show cause notice to the workman along with the copy of report of Enquiry Officer to which the workman issued a reply on 26.10.2009. Being dissatisfying the response, on 23.11.2011 Disciplinary Authority passed the order dismissing the workman from service after making an application to the Industrial Tribunal, Bengaluru, in I.D. No.148/2005 seeking approval as contemplated under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as ‘ID Act’). By the order dated 12.07.2012 passed in Serial Application No.112/2011 the Presiding

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Officer of the Industrial Tribunal rejected the application filed by the corporation seeking permission on the ground of enquiry not having been conducted properly.

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Consequent thereupon, workman filed petition under Section 33C (2) of the ID Act in Application No.1/2013 seeking payment of his dues which was allowed by order dated 06.02.2014.

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The workman in the meanwhile had also made a representation seeking reinstatement with all consequential service benefits which was not considered by the corporation. Thus;

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a) Corporation is before this Court in W.P.No. No.79598/2013 aggrieved by rejection of their application filed under Section 33(2)(b) of the ID Act by the Industrial Tribunal,

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b) Corporation is also before this Court in W.P. No.110280/2016 aggrieved by allowing of the application filed by the workman under Section 33C (2) of the ID Act directing the

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corporation to pay the amount claim by the workman,

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c) Workman is before this Court in W.P.No.77629/2013 seeking direction to the corporation to consider his representation for reinstatement with all consequential benefits.

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Shri. Prashant Hosmani, learned counsel appearing for the corporation taking through the order passed by the Industrial Tribunal in Serial Application No.112/2011 dated 12.07.2012 submits that at paragraph No.10 of the said order the Industrial Tribunal categorically held that the corporation had complied with all the requirements of section 33(2)(b) of the ID act. That when once such a finding has been arrived at, it was not open for the Industrial Tribunal to have adverted to the merits or otherwise of the enquiry proceedings conducted by the corporation. Thus, he submits such a course of action was not available as such the order requires to be set aside.

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Learned counsel for the corporation relies upon

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the order passed by the Co-Ordinate Bench of this Court in W.P.No.38917/2018 passed in the case of Divisional Controller, NWKRTC Vs. Sri. A.N. Pyati and Others dated 07.02.2024 in support of his contention. He further submits that since the workman has not challenged the order of dismissal on any count before the Industrial Tribunal, rejection of the application seeking approval on the ground of merit was also unjustified. Therefore, the order passed by the Industrial Tribunal upon the application filed by the respondent-workman under Section 33C (2) of the ID Act also has to be set aside. Hence, seeks for allowing of the petitions in W.P.Nos.79598/2013 and 110280/2016.

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Per contra, learned counsel appearing for the workman submits that the workman did not challenge the order of dismissal inasmuch as, the application filed by the corporation under Section 33(2)(b) of the ID Act seeking approval of order of dismissal having been rejected, there

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remained nothing for the workman to have challenged further. As such he did not raise the dispute in this regard. He further submits that the workman has been prosecuting this matter with a bona-fide intention and belief of his order of dismissal having been rejected by the Industrial Tribunal. Further he submits that the Industrial Tribunal upon the application filed by the workman under Section 33C (2) of the ID Act, had directed the corporation to pay the amount claimed by him further fortifying his bona-fide belief. Therefore, he had filed a representation to the corporation to consider his reinstatement with all consequential benefits. Non consideration of the same, constrained the workman to file writ petition in W.P. No.77629/2013. Hence, seeks for allowing of the petition filed by the workman and dismissing the writ petitions filed by the corporation.

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Heard. Perused the records.

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10. The provisions of Section 33 (2)(b) of the ID

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Act require compliance of the ingredients contained therein

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by the employer. For the purpose of consideration of application seeking approval, it is only the compliance of the said provisions that is to be considered and nothing else. The Co-Ordinate Bench of this Court has also taken the similar view in the order passed in the case of

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Divisional Controller, NWKRTC (supra).

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In that view of the matter, the order dated 12.07.2012 passed in Serial Application No.112/2011 by the Industrial Tribunal on the ground of the charges against the workman not have been proved in the enquiry to be the ground to reject the application filed by the corporation under Section 33(2)(b) of the ID Act cannot be sustained. As the Industrial Tribunal has exceeded beyond the requirement of consideration of Section 33(2)(b) of the ID Act, order impugned needs to be set aside. Resultantly, order dated 06.02.2014 passed in Application No.1/2013 also required to be set aside.

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This court cannot be oblivious of the consequence of setting aside the said orders which is, not

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challenging the order of dismissal by the workman who, as rightly submitted by learned counsel for the workman, was under bona-fide belief of order of dismissal having not been approved by the Industrial Tribunal and was prosecuting the aforesaid writ petition before this Court. In that view of the matter. For the said reason the workman may have to be given an opportunity. Hence, the following:

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ORDER

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(a) Wirt Petitions filed by the corporation

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in W.P.Nos.79598/2013 and 110280/2016 are

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allowed.

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(b) Orders impugned in the said writ petitions namely in Serial Application No.112/2011 dated 12.07.2012 and in Application No.1/2013 dated 06.02.2014 respectively, are set side.

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11 -

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NC: 2024:KHC-D:9347 WP No. 110280 of 2016 C/W WP No. 77629 of 2013 WP No. 79598 of 2013

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filed by the workman is disposed off as the

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same does not arise for consideration

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(d) Liberty is reserved to the workman

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to challenge the order dated 23.11.2011 passed by the corporation dismissing him from service.

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(e) The time consumed in prosecuting

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these proceedings be exempted for the purpose of consideration of issue on

limitation.

SD/JUDGE

SMM/CT-ASC

List No.: 1 Sl No.: 16

Mehboobsab Ghousemodin v. Divisional Controller

Case brief

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Mehboobsab Ghousemodin v. Divisional Controller

Case brief

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