Karnataka High Court
The Divisional Controller vs Manik Rao S/O Gunderao Desai on 18 January, 2018
Bench: L.Narayana Swamy, G.Narendar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT APPEAL NO.200607/2014
BETWEEN
The Divisional Controller,
NEKRTC, Bijapur Division,
Bijapur.
Through its Managing Director,
NEKRTC, Sarige Sadana,
Main Road, Gulbarga.
Now represented by
The Chief Law Officer
...Appellant
(By Sri Subhash Mallapur, Advocate)
AND
Manik Rao S/o Gunderao Desai,
Age 57 years,
Occ. Ex-Conductor,
R/o Heroor, Tq. Muddebihal,
Bijapur - 586 101.
...Respondent
(Sri P.Vilaskumar, Advocate)
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This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, 1961, praying to set aside the order dated
10.12.2012 passed by the learned Single Judge in
W.P.No.81689/2012 and consequently confirm the award
passed by the Labour Court, Bijapur in KID No.22/2008 and to
pass such other orders as deemed fit by this Hon'ble Court.
This appeal coming on for admission this day, Narayana
Swamy J., delivered the following:
JUDGMENT
This appeal is filed against the order passed by the learned Single Judge in Writ Petition No.81689/2012 (L-KSRTC). The prayer made by the appellant is to set aside the order dated 10.12.2012 passed in Writ Petition No.81689/2012 and further prayer is to confirm the award passed by the Labour Court, Bijapur in KID No.22/2008.
2. The respondent had been working with the appellant-Corporation. Disciplinary proceedings was initiated against him and it was alleged that he had un- authorisedly remained absent from 18.10.2006 till the date of issuance of charge sheet. After holding enquiry, the appellant-Corporation dismissed him from service on 3 05.05.2008. The dismissal order was challenged by the respondent in KID No.22/2008 on the file of Labour Court at Vijayapur and Labour Court by its order dated 03.11.2009, dismissed the petition on the ground of delay. The dismissal order was subject matter in the Writ Petition No.81689/2012 (L-KSRTC) and this Court by its order dated 10.12.2012, allowed the writ petition and the order of Labour Court passed in KID No.22/2008 was quashed and the appellant-Corporation was directed to reinstate the respondent into service within a period of eight weeks from the date of receipt of copy of the order. Consequently the services of the respondent has been reinstated. In the meanwhile, the respondent approached the Government in Reference No.16/2010 and an award has been passed on 05.03.2011, which was filed under Section 10(4-A) of Industrial Disputes Act, 1947 read with Section 2(A)(2) of Amendment Act, 2010 and further the dismissal order dated 05.05.2008, was set aside and the dismissal of the respondent has been treated as termination simplicitor with service benefits.
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3. Now the appellant-Corporation has challenged the order in the writ petition by the learned Single Judge in W.P.No.81689/2012 and further seeking direction to confirm the order of the Labour Court in KID No.22/2008, which dismissed the petition on the ground of delay.
4. Learned counsel for the appellant-Corporation has relied on the judgment of the Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation vs. Satya Prakash, in Civil Appeal No.4506 of 2008 dated 01.04.2013 and submitted that once the claim petition is dismissed under Section 10(4)(A) of Industrial Disputes Act, then he cannot invoke Section 33(2)(b) of the Industrial Disputes Act. The learned counsel submitted that the order passed by the learned Single Judge is contrary to the judgment of the Hon'ble Supreme Court and hence, it is to be set aside.
5. The second ground taken by the appellant- Corporation is that in Reference No.16/2010 the order of dismissal should not have been treated as termination 5 simplicitor. On these grounds the appellant-Corporation prays to allow this appeal and to set aside the order passed by the learned Single Judge.
6. Learned counsel for the respondent submits that the management had challenged the order passed in Writ Petition No.84954/2011 (L-KSRTC), in which the order passed by the Labour Court in Ref.No.16/2010 was challenged and the learned Single Judge by its order dated 10.06.2013 by referring the judgment in the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., v. Ram Gopal Sharama, reported in AIR (2002) 2 SCC 244, wherein it is observed that the order of termination from service is in violation of Section 33(2)(b) of the Industrial Disputes Act, is void and inoperative and its second submission was that Writ Petition No.81689/2012(L- KSRTC) was allowed on 10.12.2012, by that time the Reference No.16/2010 was already disposed of but it was not brought to the notice of the learned Single Judge and said writ petition was allowed in terms of the submissions 6 made by the respondent -workman to the effect that he will not be given backwages and he would be reinstated into service. The submission was taken on record and the writ petition was disposed of directing the management to reinstate the respondent into service without backwages and its submission that the said order was conscious in nature and now it is not open to the Corporation to challenge the order passed by the learned Single Judge and seek to confirm the order passed in KID No.22/2008.
7. We have heard learned counsel for the respective parties.
8. The dismissal of respondent from service was the subject matter in KID No.22/2008 that resulted in dismissal, on the ground of delay. The same was challenged before the learned Single Judge, which was allowed on the basis of the submissions made by both the parties. It is pertinent to note that before disposal of the petition filed by the workman, there was already an order passed in Reference No.16/2010, in which the dismissal 7 order is treated as termination simpliciter. If that order was brought to the notice of this Court, it would have passed a different order. The order passed directing the management to reinstate the petitioner into service is only on the basis of the submissions made by the workman which could have been considered by the management. Under these circumstances, we do not find any error committed by the learned Single Judge.
9. Further it is required to be observed that it is duty of the parties to bring all the facts and not to suppress any material before the Court. It is not denied by the workman about the order passed by the reference Court in which the dismissal order was treated as termination simpliciter. Under these circumstances, it is to be held that the management has committed a grave error i.e., in suppressing the material fact. In this regard, it is necessary to refer to the latin legal maxim "suppresio veri expressio falsi" i.e., a suppression of truth is equivalent to expression of falsehood.
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On the basis of the said principles, this writ appeal is liable to be dismissed, accordingly it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE sn