Karnataka Power Corporation Limited Vs Ganapathi Gajanana Bhat

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NC: 2025:KHC:9463 WP No. 9331 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF MARCH, 2025 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 9331 OF 2024 (L-RES)

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BETWEEN:

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KARNATAKA POWER CORPORATION LIMITED A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 AND STATE GOVERNMENT UNDERTAKING HAVING ITS REGISTERED AND CORPORATE OFFICE AT NO.82, SHAKTHI BHAVAN RACECOURSE ROAD BANGALORE-560001 REPRESENTED BY ASST. GENERAL MANAGER(LAW) MR D R KABADE.

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…PETITIONER

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(BY SRI. SUMIT CHATTERJEE., ADVOCATE)

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AND:

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Digitally signed by VANAMALA N Location: High Court of Karnataka

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GANAPATHI GAJANANA BHAT S/O GAJANANA BHAT AGED ABOUT 40 YEARS R/O TALAGOD, URAKERI POST KUMTA TALUK UTTARA KANNADA DISTRICT-403702.

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…RESPONDENT

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(BY SRI. NEERAJ SASTRY.,ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET

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NC: 2025:KHC:9463 WP No. 9331 of 2024

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ASIDE THE IMPUGNED JUDGMENT DATED 07 NOVEMBER 2023 PASSED BY THE TRIAL COURT IN APPLICATION 10(1)(c) NO.02/2017 (ANNEXURE-A).

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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The respondent [ a workman with the petitioner ] has succeeded in his challenge to the petitioner’s decision [Order dated 16.01.1998] to dismiss him from service as an 'Assistant Cashier' in the Reference in No.02/2017 with the Principal District and Sessions Judge and Presiding Officer, Labour Court, Shivamogga [for short, ‘ the Labour Court'] , and in this petition, he must defend the challenge by the employer [ the petitioner ] to the Labour Court’s Order dated 07.11.2023. The charge against the respondent is that there was a shortage of cash in a sum of Rs.1,11,029.75 and that he had admitted to this

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shortage when he was served with Show Cause Notice.

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The Labour Court, by the impugned order dated 07.11.2023, has held that the petitioner’s decision to dismiss the respondent from service is void while directing the petitioner to pay to the respondent 75% of the back wages from the day of dismissal till the date of his superannuation¹ along with continuity of service and all financial benefits including the pensionary benefits. The petitioner's grievance as against the Labour Court's impugned Award dated 07.11.2023 and the respondent's defense in support thereof must be considered in the light of the proceedings that have transpired as against the order of dismissal dated 16.01.1998.

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The details of the Departmental proceedings and appeal as against the order in such proceedings :

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1 This direction is because the respondent by then had attained the age of superannuation

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The petitioner has commenced the

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departmental proceedings with the issuance of Show Cause Notice dated 28.06.1997, and these proceedings have resulted in the order of dismissal dated 16.01.1998 with the decision to recover the alleged shortage. The respondent has called in question the order dated 16.01.1998 with the Appellate Authority within the petitioner's organization, but unsuccessfully. Thereafter, the respondent has applied under Section 10[4A] of the Industrial Disputes Act, 1947 [for short, 'the ID Act' '] in ID Application No.29/1999.

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3.1 ID Application No.29/19992 : The

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Labour Court, by its award dated 31.07.2002 in this Application, has opined that the enquiry against the respondent is not fair and proper, and on merits, the Labour Court has opined that the dismissal order was not sustainable as it was by a person who was not competent. These make a concise statement of

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2 This application is filed with the Labour Court, Mangaluru

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facts leading to the first petition, and the details of the further proceedings against the Labour Court’s order dated 31.07.2002 in ID Application No.29/1999 are as follows.

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3.2 W.P. No.48545/2003 : The petitioner has

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filed this petition calling in question the award dated 31.07.2002 in ID Application No.29/1999. In this writ petition, the respondent has filed an application under Section 17B of the ID Act and has sworn to an affidavit stating that as of that date he was not employed. The respondent is granted ‘ 17B Allowance’ which is paid until the disposal of this writ petition. This Court has disposed of this petition on 08.02.2008 remanding the proceedings for reconsideration both on the departmental enquiry being fair and proper as well as on the merits of the petitioner’s decision to dismiss the respondent from service opining inter alia that the dismissal order could not have been set aside on the ground of

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competence of the person who has passed such order.

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3.3 This Court has also observed that if in

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case the enquiry is held not to be fair and proper, the respondent would be entitled to seek interim relief and that until such enquiry is held and completed, the petitioner must pay the respondent 50% of the last drawn salary subject to the decision on merits.

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3.4 W.A. No.841/2008 : The respondent not

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being satisfied with this Court's order in the writ petition in W.P. No.48545/2003 has carried such order in this intra Court Appeal. A Division Bench of this Court has dismissed the appeal holding that this Court has rightly remitted the matter for fresh consideration protecting the respondent's interest with protection to pay 50% of the last drawn salary till the Preliminary Issue is adjudicated. The Division Bench has observed that after the orders on the

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Preliminary Enquiry, appropriate interim order could be granted for the period until the adjudication on merits.

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3.5 Restored Proceedings in IDA

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No.29/1999 . The Labour Court has disposed of the restored proceedings by Order dated 19.03.2016. The disposal is while considering the merits of two applications filed by the petitioner and the respondent invoking the provisions of the Limitation Act, 1963 [for short, 'Limitation Act' ] and Section 11 of the ID Act. The first application is by the petitioner for a decision on the respondent's application under

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Section 10[4A] of the ID Act being barred by limitation, and the respondent's next application is for condonation of delay in the event there is delay. The Labour Court by its Order dated 19.03.2016 has rejected the respondent's application while allowing the petitioner's application and consequentially, the Labour Court at Mangaluru has dismissed the

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respondent's application under Section 10[4A] of the ID Act.

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3.6 However, this is subject to certain observations based upon which the respondent has sought for a reference under Section 10 of the ID Act. The Labour Court’s observation in its material part reads as under:

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"Even if the Labour Court dismissed the application on the ground of limitation, then the 1^st party workman is not going to be left the remedy else, he can raise the industrial dispute before the Government, if the conciliation before Government fails, they have to only seek reference by the Government to the Labour Court for the ventilation of their grievances."

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3.7 Present Application 10[1][c] No.2/2017:

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The State Government by its letter dated 12.12.2016 has referred the dispute raised by the respondent for adjudication by the Labour Court. The State Government has referred the questions such as

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whether the respondent has justifiably raised an industrial dispute after seventeen years from the date of dismissal dated 16.01.1998 and if the industrial dispute is properly raised, whether the respondent has been justifiably dismissed from service vide Order dated 16.01.1998. The Labour Court has answered the first question in favour of the respondent opining that the industrial dispute raised by the respondent, though after seventeen years from the date of the decision to dismiss, is not time barred or lacking in bona fides. On the second question, the Labour Court has answered that the petitioner has targeted the respondent because another official involved in the same incident and against whom departmental enquiry is also held, has not been removed from service but the respondent is.

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3.8 The Labour Court on the question of reinstatement and back wages, has opined that because the respondent has crossed the age of

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superannuation, there cannot be any reinstatement, and because he is removed for no fault of his, he would be entitled for back wages at 75% along with continuity of service and all retirement benefits. The Labour Court on permissibility of raising an industrial dispute seventeen years from the date of dismissal has essentially offered two reasons viz ., that the respondent is entitled for the benefit of exclusion of time spent in prosecuting the proceedings in the earlier round of litigation under Section 14 of the Limitation Act, 1963 and that the respondent cannot be found guilty of delay and laches in availing his remedy for a decision on dismissal under Section 10 of the ID Act.

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Rival Submissions:

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Sri Sumit Chatterjee, the learned counsel

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for the petitioner, and Sri Neeraj Sastry, the learned counsel for the respondent, are categorical that the Labour Court could not have considered the

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question of delay of seventeen years in raising the dispute applying the provisions of Limitation Act, 1963, in view of the decision of the Apex Court in Prabhakar vs. Joint Director, Sericulture Department and another '³ . In fact, the learned counsel invites this Court's attention to Paragraph 44 of this decision which reads as under:

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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 not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account

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3 [2015]15 SCC 1

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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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The learned counsels further submit that the decision in this petition must turn on whether the respondent must fail on the ground of delay and laches.

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4.1 Sri Sumit Chatterjee contends that this Court must consider this question in the backdrop of the fact that the respondent has prosecuted his application under Section 10[4A] of the ID Act despite being aware of the fact that it was presented beyond the period of six months that is contemplated under this provision. The learned counsel argues that the respondent, who has not availed his remedy under Section 10[4A] of the ID Act within six months and without a plausible explanation for not availing the remedy within time, cannot succeed in the present reference and that the Labour Court has erred in not considering these circumstances.

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4.2 As against this submission, Sri Neeraj Sastry contends that the Tribunal has answered the question of delay and laches because the respondent did not accede to the dismissal order as he has prosecuted his grievance initially before the Labour Court, Mangaluru and subsequently even after remand. The learned counsel emphasizes that the reference is in terms of the liberty that is granted by the Labour Court at Mangaluru while disposing of the earlier application under Section 10(4A) of the ID Act.

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These rival submissions are considered in

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the light of the reasons offered by the Tribunal which are as follows:

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"Even though there is a time gap of almost 17 years in between the date of termination and date of reference to this court, in these 17 years, there were series of continuous litigation going on between these parties. The litigation before the appellate authority, then, it was before the labour Court, Mangalore and then, it was before the Single Judge, Hon'ble High court of Karnataka and

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thereafter, before the Division Bench and then again before the Labour Court, Mangalore. It is not that the 1^st party has kept quiet for 17 years and there after, raised the industrial dispute. It is also not the case of 1^st party reopening a dead litigation. Rather, in all these 17 years, both the parties were seriously engaged in litigation.

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This Court must opine that this Court does not find the Labour Court's view as aforesaid either perverse or irregular.

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5.1 Indisputably, the respondent has pursued his remedy resulting in the order dated 19.03.2016 by the Labour Court at Mangaluru leading to the subject reference. This Court, in this context, must also observe that the ground on which this Court and the Division Bench have intervened is that the question of limitation was not raised at that stage, and it is only when the restored proceedings is taken up by the Labour Court at Mangaluru, the applications are filed. If the Limitation Act, 1963

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does not apply to a reference under Section 10 of the

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ID Act, and if the respondent has diligently prosecuted his application under Section 10 (4A) of the ID Act earlier, he cannot be non-suited on the ground of delay and laches and the question in this regard is answered accordingly.

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Sri Sumith Chatterjee next contends that this Court must intervene with the direction to pay back wages because the respondent has not discharged the onus of demonstrating that he was not gainfully employed and even otherwise, he will not be entitled to 75% of the back wages with all benefits. In rebuttal, Sri Neeraj Shastry relies upon the decision of the Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak

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Mahavidyalaya (D.Ed.) and Others⁴ to contend that:

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• in cases of wrongful termination of service, reinstatement with continuity

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4 [2013]10 SCC 323

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of service and back wages is the normal Rule which is applied when the concerned employee [a workman] pleads and makes a statement before the Court of first instance that he or she was not gainfully employed or was employed with lesser wages, and

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• in the present case, the petitioner cannot dispute that the respondent in support of his application for relief under Section 17-B of the ID Act, during the pendency of the writ petition in W.P.No.48545/2003, has filed an affidavit on 26.02.2004 categorically stating that he was not gainfully employed right from the date of dismissal.

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6.1 Sri Neeraj Shastry also emphasizes that though this Court in W.P. No. 48545/2003 directed

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the petitioner to pay 50% of the wages until the Preliminary Issue is considered in IDA No.29/1999, the petitioner has not been paid this amount. In reply, Sri Sumit Chatterjee relies upon the decision of

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the Apex Court in Rajasthan State Road Transport Corporation, Jaipur vs. Phool Chand⁵ to contend that it would not suffice for a workman to be entitled

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for back wages only to plead that she or he was without employment but must prove the same with the aid of evidence.

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As regards the reliance on the decision of the Apex court in Deepali Gundu Surwase and

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Phool Chand supra , this Court must observe that there cannot be any dispute that the proposition stated by the Apex Court in Deepali Gundu Surwase is undisturbed by the next decision. The

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Apex Court in Phool Chand , while referring to the decision in Deepali Gundu Surwase [and other decisions as well ] has opined that the questions on 5 [2018]18 SCC 299

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[a] how the back wages are required to be decided [b] the factors that are to be taken into consideration for awarding such back wages, and [c] on whom the initial burden lies are no longer res Integra.

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7.1 Further, because of the two vital

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circumstances viz ., the respondent filing an affidavit for relief under Section 17-B of the ID Act and being granted such relief on the strength of his assertion that he was not gainfully employed in 2004 and that he has remained without gainful employment on the same terms as he was employed with the petitioner, this Court must opine that it will be sufficient to conclude that the petitioner has discharged the initial burden.

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7.2 However, the Labour Court has granted 75% of the wages with all benefits including continuity of service but without providing for any deduction towards relief under Section 17-B that is granted for over a period of almost four years between

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2004 to 2008, and this would be a very material circumstance as also the fact that the respondent has not been in employment with the petitioner for over two decades prior to his superannuation. It also cannot be gainsaid that the length of period for which a workman has remained out of employment will be a relevant factor, and this has also not been considered by the Labour Court.

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7.3 This Court is not called upon to examine

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the merits of the Labour Court’s orders on the merits of the decision to dismiss the respondent from service. This Court therefore must interfere to this limited extent with the Labour Court's order on the back wages, and this Court, on a careful consideration of all the circumstances, is persuaded to opine that it should be 50% is appropriate. The respondent is granted a similar percentage in the earlier round of litigation in W.P. No. 48545/2003. As such, the following:

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ORDER

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[a] The writ petition stands disposed of

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modifying the Labour Court's order dated 07.11.2023 in Reference in No. 02/2017 directing the petitioner to pay back wages to the respondent at 50% from the date of his termination till the date of his superannuation along with the benefits as awarded by the Tribunal.

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[b] The petitioner is directed to settle such amounts due to the respondent accordingly within three [3] months. Failing which, the respondent will be at liberty as is permissible in law to work out his remedies under the ID Act.

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Sd/(B M SHYAM PRASAD) JUDGE

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AN/-, NV

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List No.: 1 Sl No.: 79

Karnataka Power Corporation Limited v. Ganapathi Gajanana Bhat

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Karnataka Power Corporation Limited v. Ganapathi Gajanana Bhat

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