Karnataka High Court
Karnataka State Road Transport ... vs State Of Karnataka on 5 March, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:9074
WP No. 63450 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 63450 OF 2016 (L-KSRTC)
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT CORPORATION
MANGALORE DIVISION,
MANGALORE BY ITS
DIVISIONAL CONTROLLER,
REP. BY ITS CHIEF LAW OFFICER.
...PETITIONER
(BY SMT. H.R. RENUKA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF LABOUR,
KARMIKA BHAVANA,
BANNERGHATTA ROAD,
BANGALORE - 560 029,
REP. BY LABOUR COMMISSIONER.
2. N.B. SHANKAR S/O LATE BETTAIAH,
AGED ABOUT 56 YEARS,
R/O A.K. COLONY,
Digitally NUGGEHALLI TOWN,
signed by A K NUGGEHALLI HOBLI,
CHANDRIKA
CHANNARAYAPATNA TALUK,
Location: HASSAN DISTRICT - 573 131.
HIGH COURT
OF ...RESPONDENTS
KARNATAKA
(BY SMT. SPOORTHI U., HCGP FOR R1;
SRI. V.S. NAIK, ADCOVATE FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION.
QUASH THE ORDER PASSED BY THE R-1 DATED: 14.11.2016 VIDE
ANNEXURE-Y AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:9074
WP No. 63450 of 2016
ORDER
The petitioner, Karnataka State Road Transport Corporation (for short 'the Corporation') is before this Court under Article 226 of the Constitution of India, questioning the correctness and legality of order dated 14.11.2016 bearing No.IAA-2/CR-35/2013-14 (Annexure- Y) passed under Section 29 of the Industrial Disputes Act, 1947 (for short '1947 Act') granting permission to initiate prosecution against the petitioner-Management.
2. Heard Smt. H.R.Renuka, learned counsel for the petitioner and Smt. Spoorthy.V., learned HCGP for respondent No.1 as well as Sri. V.S.Naik, learned counsel for respondent No.2. Perused the writ petition papers as well as original records.
3. Smt. H.R.Renuka, learned counsel for the petitioner would submit that respondent No.2 was working in the petitioner-KSRTC as badli conductor and his services were confirmed on 20.01.1984. After an enquiry, respondent No.2-workmen was dismissed from services by -3- NC: 2024:KHC:9074 WP No. 63450 of 2016 order dated 13.12.2005. Respondent No.2 raised dispute challenging the order of dismissal in IDR.No.4/2008. By award dated 20.05.2011, order of dismissal was set aside directing reinstatement with 50% back wages with continuity of service and consequential benefits. The petitioner-KSRTC challenged the said award before this Court in W.P.No.17148/2012 and respondent No.2- workmen also challenged the said award insofar as denial of 50% back wages in W.P.No.22877/2012. Learned Single Judge by order dated 17.09.2012, dismissed the writ petition of respondent No.2-workmen and partly allowed the writ petition of the petitioner-KSRTC denying the workmen 50% back wages granted by the Labour Court. Learned counsel would submit that in the meanwhile, by letter dated 13.11.2012 (Annexure-B), the petitioner- KSRTC called upon respondent No.2 to furnish certain documents within seven days so as to implement the award. Though the respondent No.2 failed to produce documents, by letter dated 26.11.2012, the petitioner- KSRTC posted respondent No.2 to work at Mangaluru -4- NC: 2024:KHC:9074 WP No. 63450 of 2016 Depot-1. As respondent No.2 failed to report to duty, Final Call Notice dated 18-20/3/2013 (Annexure-D) was issued calling upon respondent No.2 to report to duty, failing which, further action would be taken. Respondent No.2 received the same and acknowledgment for having served the same is placed on record at Annexure-D1. Respondent No.2 replied by his letter dated 22.03.2013 (Annexure-E) stating that he would report to duty within one week. As respondent No.2 failed to report to duty, the petitioner- KSRTC issued Final Call Notice dated 24-26/4/2013 (Annexure-G) calling upon respondent No.2 to report to duty within three days and informed him that if he fails to report to duty, his name would be removed from the staff list of the Corporation, which was also received by respondent No.2. As respondent No.2 failed to report to duty, the petitioner-KSRTC under order dated 11.06.2013 forfeited the right of respondent No.2 to join duty with the petitioner-KSRTC and also removed his name from the list of its employees.
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NC: 2024:KHC:9074 WP No. 63450 of 2016
4. It is stated that respondent No.2 submitted representation to respondent No.1 complaining non- implementation of the award. Based on the complaint of respondent No.2, Annexure-N, show-cause notice dated 31.10.2013 was issued to the petitioner calling upon the petitioner to explain as to why the petitioner-KSRTC shall not be prosecuted under Section 29 of the Industrial Disputes Act, 1947 (for short '1947 Act') for violation of Sections 17A, 18 and 19 of the 1947 Act. The petitioner- KSRTC submitted its reply vide Annexure-P dated 21.11.2013 and Annexure-Q dated 18.07.2014. Thereafter one more notice dated 24.11.2014 was issued by respondent No.1, to which, the petitioner submitted detailed reply in terms of Annexure-S dated 02.12.2014. Learned counsel for the petitioner would submit that in the meanwhile, W.A.No.6994/2012 filed by respondent No.2 insofar as denial of back wages was disposed of by judgment dated 24.04.2014 as there was mistake apparent on the judgment, the petitioner-KSRTC filed -6- NC: 2024:KHC:9074 WP No. 63450 of 2016 Review Petition No.520/2014, which was allowed and judgment in writ appeal was clarified.
5. Learned counsel Smt. H.R.Renuka would further contend that the order that would be passed under Section 29 of the 1947 Act would have serious consequence. Since it would have serious consequence, the Authority while considering complaint under Section 29 of the 1947 Act, shall have to apply its mind and shall have to record a specific finding with regard to breach alleged and committed by the Management. Learned counsel would further submit that respondent No.1 under impugned order has failed to record a finding with regard to breach committed by the petitioner-KSRTC. Unless nature of breach and extent of breach is recorded, the Authority would not get jurisdiction to grant permission for prosecution. In the instant case, learned counsel would submit that there is no breach and on the other hand, the petitioner-KSRTC has taken all steps to implement the award. Respondent No.2 though received call letters, -7- NC: 2024:KHC:9074 WP No. 63450 of 2016 failed to report to duty, which ultimately resulted in forfeiting his right to join duty. Learned counsel further submits that respondent No.1, during the course of its order has noted that the Corporation has failed to implement the award and there is a delay tactic in implementing the award. Learned counsel would submit that there is no delay in taking action and implementing award and moreover, it is submitted that during the pendency of the writ appeal itself, the petitioner- Corporation took action to implement the award. Learned counsel would submit that as there is no finding with regard to breach committed by petitioner-KSRTC, same requires interference. Thus, she prays for allowing the writ petition.
6. Per contra, learned counsel Sri.V.S.Naik would support the order passed by first respondent and would submit that petitioner-KSRTC has no right to forfeit the right of second respondent to join duty with petitioner- KSRTC. Learned counsel would submit that no notice -8- NC: 2024:KHC:9074 WP No. 63450 of 2016 whatsoever is issued before forfeiting the right of joining duty. Learned counsel would submit that petitioner-KSRTC has committed breach of the award dated 20.05.2011. Learned counsel would submit that first respondent taking note of the entire facts and referring to the documents placed on record has come to the conclusion that there is breach on the part of petitioner-KSRTC and has rightly granted permission to prosecute petitioner-KSRTC. Learned counsel places reliance on the decision of the Division Bench of this Court, decided on 02.04.1990 in W.P.NO.13129/1982 (F.K.MENZLIN VS.
B.P.PREMAKUMAR) to contend that if the petition challenging the order of prosecution is interfered, then it would lead to delay in prosecution and it would also lead to delay in implementation of settlement or award. He further submits that it is open for the petitioner-KSRTC to take all contentions including the ground that sanctioning authority has accorded sanction without application of mind before the Court where prosecution is launched. -9-
NC: 2024:KHC:9074 WP No. 63450 of 2016 Thus, learned counsel would pray for dismissal of the writ petition.
7. Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, I am of the view that first respondent failed to record the nature and extent of breach committed by the petitioner-KSRTC under impugned order dated 14.11.2016 passed under Section 29 of the 1947 Act.
8. Section 29 of 1947 Act could be invoked where there is breach of any terms of settlement or award and if such breach is established, any person committing such breach shall be punishable with imprisonment for a term which may extend to six months, or with fine or with both. Section 29 of 1947 Act reads as follows:
"29. Penalty for breach of settlement or award.-- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, (and where the
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NC: 2024:KHC:9074 WP No. 63450 of 2016 breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first) and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach."
A reading of the above provision would makes it further clear that a breach may be a continuing breach or breach already committed by such person. Granting permission for prosecution would have a serious consequence on such a person. In that circumstance, Authority which grants permission for prosecution has greater responsibility. Order under Section 29 of 1947 Act cannot be passed lightly. The Authority which considers complaint under Section 29 of 1947 Act shall have to apply its mind and shall have to record its finding with regard to breach or continuing breach. Unless specific breach or continuing breach is recorded on the complaint after considering the
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NC: 2024:KHC:9074 WP No. 63450 of 2016 objections if submitted, the Authority would not get jurisdiction to grant permission for prosecution.
9. In the instant case, first respondent failed to record the nature and extent of breach committed by petitioner-KSRTC with regard to award dated 20.05.2011. The first respondent merely stated that petitioner-KSRTC has violated Sections 17A, 18 and 19 of 1947 Act. What is the breach is to be specifically stated and finding is to be recorded with regard to breach of award. How petitioner- KSRTC has violated Sections 17A, 18 and 19 of 1947 Act is not recorded. When second respondent stated that award is not implemented and when petitioner-KSRTC has filed its objection taking specific plea that in spite of call letters, and passing order, second respondent has not reported to duty and when it has passed order dated 11.06.2013 forfeiting the second respondent's right to join, first respondent ought to have considered how direction issued under Award dated 20.05.2011 is violated or how the petitioner-KSRTC has breached the terms of the Award. In
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NC: 2024:KHC:9074 WP No. 63450 of 2016 the absence finding with regard to breach committed by petitioner-KSRTC, first respondent could not have granted permission under Section 29 of 1947 Act for prosecution. Learned counsel for the respondent placed reliance on the decision in F.K.MENZLIN (supra) to contend that sanction order could not be interfered under Article 226 of the Constitution of India and party could agitate before the Court during the course of prosecution the grounds urged herein. The facts of the present case and the facts in F.K.MENZLIN (supra) are entirely different. In F.K.MENZLIN (supra), material was placed on record and order of sanction referred to the relevant material. In the instant case, materials are not placed on record and the Authority granting sanction has not recorded the finding with regard to breach or violation of the Award in question. Hence, the following:
ORDER
i) Writ petition is allowed.
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NC: 2024:KHC:9074
WP No. 63450 of 2016
ii) Impugned order bearing No.IAA-
2/CR-35/2013-14 (Annexure-Y)
dated 14.11.2016 passed by first
respondent is set aside.
iii) Matter is remitted back to first
respondent for fresh consideration in accordance with law, in the light of the observations made above, as expeditiously as possible.
Sd/-
JUDGE SMJ,NC List No.: 1 Sl No.: 29 CT:SNN