Karnataka High Court
M/S Bata India Ltd vs Mr H B Puttaswamy Gowda on 9 April, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.56423/2014 (L-TER)
BETWEEN:
M/S. BATA INDIA LTD.,
PLOT NO.474, 475 & 476,
4TH PHASE, PEENYA INDUSTRIAL AREA,
BANGALORE-560 058,
REPRESENTED BY ITS
ASSISTANT GENERAL MANAGER-SOUTHCAN
MR.KUHARAN MUKHOPADHYAY (AGE:40 YRS)
... PETITIONER
(BY SRI PRADEEP S. SAWKAR, ADVOCATE)
AND:
MR. H.B. PUTTASWAMY GOWDA (MAJOR),
C/O. RAJANNA BUILDINGS,
322/2, NEAR STANDARD SCHOOL,
T. DASARAHALLI, BANGALORE-560 057.
... RESPONDENT
(BY SMT. G. KOKILA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED
13.08.2013 PASSED BY THE INDUSTRIAL TRIBUNAL, BANGALORE IN
SERIAL APPLICATION NO.49/2003 IN I.D.NO.138/2000 VIDE
ANNEXURE-J.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 15/01/2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
CAV O R D E R
The petitioner - M/s. Bata India Limited is challenging
the order passed by the Industrial Tribunal, Bengaluru
('Tribunal' for short) dated 13.08.2013 in Sl. Appl.
No.49/2003 in ID. No.138/2000, wherein, the Tribunal by
the impugned order dismissed the approval application filed
by the petitioner under Section 33 (2)(b) of the Industrial
Disputes Act, 1947 ('ID Act' for short).
2. The respondent (hereinafter referred to as
'workman') was issued with a charge-sheet on 11.11.1999
for absenteeism and insubordination. Domestic enquiry was
conducted and it was found that the charges were proved.
While this was ongoing, a second charge-sheet was issued on
02.05.2000, and another domestic enquiry was conducted.
The industrial dispute in ID No.138/2000 was raised under
Section 10 (1)(d) of the ID Act on reference made by the
Government by its order dated 16.11.2000 for adjudication
of the points of dispute which reads as under:
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"1. Is the management justified in declaring lockout
from 8.3.2000 after the incidents relating to go-
slow and gherao?
2. Are the workmen justified in going on strike
from 3.7.2000? Are the management justified in
demanding undertaking from the workmen after
lifting of lock out?
3. Is the I Party union justified in demanding full
wages for the workmen during the months of
February and March 2000, when the workmen
went slow in their work?
4. If not, to what reliefs are the workmen
entitled?"
3. After reviewing both the enquiry, the disciplinary
authority dismissed the workman on 19.11.2003. Since ID
No.138/2000 was pending, the petitioner filed an approval
application under Section 33 (2)(b) of the ID Act.
4. The Tribunal by the impugned order dismissed the
approval application filed by the petitioner observing that the
approval application under Section 33 (2)(b) of the ID Act is
not maintainable, as the dispute in ID No.138/2000 was
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pending and the petitioner ought to have filed an application
under Section 33 (1)(b) seeking prior permission from the
Tribunal before dismissing the workman.
5. Learned counsel for the petitioner argues that the
Tribunal incorrectly handled two important aspects:
Firstly, the tribunal did not distinguish between the
issues of lockout and the misconduct related to the
workman's behaviour. This misconduct, according to the
petitioner, wasn't part of the dispute in ID No.138/2000. It is
further argued that the tribunal wrongly interpreted the
distinction between 33 (1)(b) and Section 33 (2)(b) of the ID
Act. Section 33(1)(b) requires prior permission before certain
actions are taken while 33 (2)(b) requires approval after the
action had already been taken. It is contended that the issue
in ID No.138/2000 was unrelated to the workman, as he was
not a connected workman in ID No.138/2000. It is
submitted that even if the charges against the workman are
tied to a composite punishment, the petitioner had the option
to prove before filing under Section 33 (1)(b) or 33 (2)(b) of
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the ID Act. This is based on the 'the doctrine of election'
which means the petitioner has the right to choose how to
proceed, depending on the circumstances. Additionally, it is
submitted that there is no non-obstante clause in Section 33
(1)(b) or 33 (2)(b) of the ID Act. Supporting his submission,
learned counsel places reliance on the following decision:
i. Workmen of Mysore Lamp Works vs. State
and another1 (Workmen of Mysore Lamp Works)
ii. Bharat Electronics Limited vs. Industrial
Tribunal, Karnataka, Bangalore and another2
(Bharat Electronics Limited)
6. Per contra, learned counsel appearing for the
workman argues that the tribunal was correct in dismissing
the petitioner's application for approval under Section 33
(2)(b) of the ID Act. According to the learned counsel the
petitioner ought to have sought prior approval under Section
33 (1)(b) instead, because the workman was connected to
the dispute in ID No.138/2000, which has been referred to
1
W.P.No.17184/1980 & connected matters D.D. on 20.03.1984
2
(1990) 2 SCC 314
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the Tribunal by the State Government. It is submitted that
the petitioner dismissed the workman and other workers
while the dispute in ID No.138/2000 was still pending. The
counsel argues that in these circumstances, the petitioner
should have applied for permission before taking the action
of dismissal, rather than taking post-facto approval under
Section 33 (2)(b). The misconduct that led to the dismissal
is claimed to be directly tied to the subject matter of the
dispute, and hence, a prior approval should have been
obtained. Counsel for the workman further argued that the
petitioner's application is essentially an attempt to re-litigate
matters that have already been settled in earlier
proceedings. Specifically, eight out of nine serial applications
were dismissed between 2008 and 2009, with the present
workman's serial application remaining pending until 2013.
Against the dismissal of the application concerning the eight
co-workers, the petitioner appealed to this Court, writ
petition and the writ appeal were dismissed and upheld by
the Apex Court in SLP No.21879/2009. It is submitted that
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suppressing the fact that the SLP was dismissed, the
petitioner is trying to raise the same issue again, which has
already been addressed and resolved.
7. It is argued that even if the petitioner had the
right to choose, the doctrine of estoppel of election prevents
from doing so. If the petitioner attempts to separate the two
charge-sheets and treat the dismissal as based solely on the
first charge sheet, the tribunal would not have granted
approval under Section 33 (2)(b) of the ID Act. This is
because the first charge sheet, which relates to a minor
offence of absenteeism (for only an hour) would normally
result in a warning, not a dismissal. Therefore, it is
contended that the dismissal was overly harsh and not
justified under industrial jurisprudence, as such an action
would not be considered appropriate for such a minor
infraction.
8. Having heard the learned counsel appearing for
the parties, the points that fall for consideration are:
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"(i) Whether the application filed by the
petitioner under Section 33(2)(b) of the ID Act
was maintainable in the light of dispute pending
before the Industrial Tribunal in
I.D.No.138/2000?
(ii) Whether the petitioner had a right of
Doctrine of Election when the charges leveled
against the respondent -workman were two
separate charge sheets and the right of election
made by the petitioner by filing application
under Section 33(2)(b) of the ID Act was
justified?"
9. The dispute involves dismissal of the workman
who was employed as an Operator (Grade - C) in the
petitioner's factory. The workman was dismissed from
service after two charges were leveled. The charge sheet
dated 11.11.1999 was the acts of misconduct, which reads
as under:
"It has been brought to our notice that on
09.11.99, when you were working in the Night Shift
on 225 Machine with other co-workers, you left your
machine and workplace and found missing from the
workplace from about 2.30 a.m onwards.
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Whereas, the shift incharge has tried to trace
your whereabouts, but he could not trace you
anywhere in the premises of the Factory.
Whereas, atlast, you came to your workplace to
rejoin the duty at about 3.30 a.m. Your absence from
your place of work during working hours without the
permission, though you are engaged on a work of
continuous nature amounts to utter lack of
responsibility and dereliction.
Whereas, on your return to your workplace when the shift
incharge asked your whereabouts, you shouted against him in
louder voice giving insolent replies and challenged him by saying
"£Á£ÀÄ M/C ºÀwÛgÀ£Éà EzÉÝ. FUÉãÀÄ? Complaint ªÀiÁrÛgÁ? CµÀÉÖ
vÁ£ÉÃ? ªÀiÁr"
Your false replies that you were near the machine only
and insolent behaviour challenging the Superiors
amounts to indecent behaviour, gesture and
subversive of discipline.
The aforesaid acts of omission on your part are of
serious and grave nature and serious misconduct
under standing order as detailed below and render you
liable for severe disciplinary action.
Clause 30.49 Unauthorised absence from the
place of work
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Clause 30.1 Use of impertinent language,
indecent behaviour, gesture Against
any superior officer, insult to
superior.
Clause 30.14 Disobedience of instructions given
by any superiors
Clause 30.28 Misbehaving with any officer.
Clause 30.16 Commission of any act subversive of
discipline or good behaviour
You are therefore hereby called upon to show cause
within three days from the receipt of this charge sheet
as to why disciplinary action should not be taken
against you. In case, you fail to submit your
explanation within the time specified above, it will be
presumed that you have no explanation to offer and
have accepted the charges as correct and further
necessary action would be taken without any
reference to you."
10. The second charge sheet-cum-show-cause notice
dated 02.05.2000 is as under:
"Clause 30.1: Use of impertinent language,
indecent behaviour, gesture against
any superior Officer of the Company
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Clause 30.2: Participation in a stay-in strike or
any form of strike
Clause 30.3: Inciting or instigating other
employees to take part or to act
otherwise in furtherance of a stay-in
Strike in any form or action in
furtherance of such strike.
Clause 30.16: Commission of any act subversive of
discipline or good behaviour within
the premises or precincts of the
Company.
Clause 30.17: Riotous or disorderly behaviour or
conduct endangering the life or
safety of any person or any other
act subversive of discipline whether
committed inside or outside the
Factory Premises.
Clause 30.28: Threatening, assaulting, intimidating
or misbehaving with any Officer
whether inside or outside the factory
premises or incitement to or
averment of any of these acts.
Clause 30.40: Any act of coersion against the
Management or any of the
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Managerial Staff of the Company for
fulfilment of demands.
Clause 30.76: Conduct within the factory in a
manner which is likely to endanger
the life or safety of any person.
Clause 30.78: Instigation, incitement; aiding or
abetment of any act of misconduct
under these Standing Orders.
Clause 30.79: Gherao, Dharna, abusing superiors,
causing obstruction to ingress or
egress.
Clause 30.83: Any other act of omission or
commission not specifically provided
for in these standing orders but
which are acts subversive of
decency, discipline and morality
according to normal human
discipline in the Company.
Clause 30.86: Squatting or remaining any where
within the premises of establishment
other than the appointed place with
a view to intimidate, coerce or
threaten any Officer of the
Company.
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Clause 30.87: Deliberately making false, vicious or
malicious statement in public or
otherwise against the Company or
any Officer of the Establishment.
Clause 30.90: Any act or conduct inside / outside
the Factory which is detrimental or
prejudicial to the interest or image
or reputation of the Company.
Clause 30.91: Conduct unbecoming of an employee
of the Company."
11. The charges leveled against the workman are:
(i) Dereliction of duty and insolence in 1999 charge
sheet.
(ii) Involvement in agitating and illegal activities
including gherao and violence against
management officials in 2000.
12. Domestic enquiry was conducted and he was
found guilty and subsequently dismissed from service in
2003. The State Government on 16.11.2000 referred the
dispute for adjudication under Section 10 (1)(d) of the ID Act
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and the reference made by the State Government as stated
supra was related to the justification of a lockout after the
incidents relating to go-slow and Gherao. The dispute
referred to in ID No.138/2000 was not about specific
misconduct of the workman. The workman was only a
'concerned workman' and not directly involved in the dispute
regarding Gherao or go-slow. The workman's dismissal was
based on a misconduct of the charge sheet dated 11.11.1999
and 02.05.2000. There being two charges leveled against
the workman, which allows the employer to take disciplinary
action, the petitioner had an option of either seeking
approval by filing under Section 33 (2)(b) of the ID Act or
permission under Section 33(1)(b) of the ID Act. The
workman's dismissal based on misconduct was not related to
the lock-out dispute, as such, it did not require prior
permission under Section 33(1)(b) of the ID Act. The
domestic enquiry conducted by the petitioner, the tribunal
held that it was fair and proper and the workman was
provided with opportunity to defend himself. The tribunal's
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order rejecting the application for approval filed by the
petitioner under Section 33 (2)(b) of the ID Act was
incorrect.
13. The petitioner's application for approval under
Section 33 (2)(b) of the ID Act was maintainable and the
tribunal ought to have adjudicated the application on its
merits. The workman placed reliance on various orders
against the co-workers who were dismissed from service
along with the workman herein, to contend that
maintainability of the application under Section 33 (2)(b) of
the ID Act was argued in those petitions, which was not
considered by this Court and confirmed by the Apex court.
The same has attained finality.
14. The orders relating to co-workers was a case
where a single charge sheet dated 02.05.2000 was levelled
against the co-workers and their involvement in agitating
including gherao and violence against the management
officials. The involvement of co-workers was the dispute
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which was pending in I.D.No.138/2000 under which a
reference was made. Dismissal of the workers filed by the
co-workers will not aid the present workman as the fact
situation is different from the present case, in as much as in
the said case, the charges leveled against those workmen
was relating to the second charge subject matter of ID
No.138/2000, in those circumstances, the rejection of the
application filed by the petitioner seeking approval under
Section 33 (2)(b) of the ID Act was justified.
15. In the instant case, the tribunal has failed to
consider that the workman herein is not similarly placed with
the other co-workmen, the petitioner's application under
Section 33 (2)(b) of the ID Act seeking approval was
maintainable and the tribunal was not justified in rejecting
the application. The misconduct for which the workman was
dismissed was unrelated to the dispute in I.D.No.138/2000
and therefore, no prior permission was required under
Section 33 (1)(b) of the ID Act and post facto approval under
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Section 33 (2)(b) of the ID Act was the correct procedural
course.
16. To the contention raised by the workman that the
first charge leveled against the workman is a minor act of
misconduct i.e., absenteeism of nearly for an hour from the
place of work and given the gravity of offence alleged against
the workman would not warrant dismissal of the workman
from service, it is necessary to state here that the scope and
ambit of proceedings under Section 33 (2) (b) of the ID Act
vis-a-vis Section 10 (1) of the ID Act is different. The
proceedings under Section 33 (2)(b) of the ID Act are of a
limited scope and the same is not required to be exercised
akin to the proceedings under Section 10 of the ID Act, when
the workman initiates the proceedings challenging the action
initiated against him. The tribunal cannot give a finding that
the punishment is grossly disproportionate to the proved
charges in the proceedings under Section 33 (2)(b) of the ID
Act as is well settled in the case of The workmen of M/s.
Firestone Tyre and Rubber Co. of India P. Ltd. Vs. The
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Management and others3 (Firestone Tyre) and John
D'souza Vs. Karnataka State Road Transport
Corporation4 (John D'souza), wherein it is clearly held that
it is not open for the tribunal to exercise the jurisdiction
under Section 11A of the proceedings under Section 33
(2)(b) of the ID Act. Thus, the contention of the workman
that the first charge leveled against the workman is a minor
act of misconduct and order of dismissal would be
disproportionate would not be considered in the proceedings
under Section 33 (2)(b) of the ID Act and would fall for
consideration in the proceedings that would be initiated
under Section 10 of the ID Act. Accordingly, the points
framed for consideration are answered and this Court pass
the following:
ORDER
i. The writ petition is allowed in part. ii. The impugned order dated 13.08.2013 passed by the tribunal in serial application 3 (1976) 3 SCC 819 4 (2019) 18 SCC 47
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No.49/2003 in ID No.138/2000 is hereby set aside.
iii. The matter is remitted back to the tribunal for fresh consideration on merits of the application seeking approval. iv. Parties to appear before the tribunal on 25.04.2025.
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________________________ JUSTICE K.S. HEMALEKHA MBM/SS