Karnataka High Court
Udachappa S/O. Fakirappa vs Divisional Controller on 15 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.78139/2013 (L-KSRTC)
BETWEEN
UDACHAPPA S/O. FAKIRAPPA
GANGAMMANAVAR,
AGE: 50 YEARS, OCC: NIL,
R/O. YARAGUPPI, TQ: KUNDAGOL,
DIST: DHARWAD
..... PETITIONER
(BY SRI H R GUNDAPPA, ADVOCATE)
AND
DIVISIONAL CONTROLLER
NWKRTC, HUBLI DIVISION
HUBLI
..... RESPONDENT
(BY SRI RAVI HOSAMANI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH, THE DISMISSAL
ORDER PASSED BY THE RESPONDENT-CORPORATION
DATED:06/04/2006, AND THE ORDER PASSED BY THE LABOUR
COURT, HUBLI AT HUBLI, IN APPLICATION NO.19/2012,
DATED:08/01/2013, UNDER SECTION 33(C)(2) OF THE I.D. ACT
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1947, VIDE ANNEXURES-A AND B, AND TO ALLOW APPLICATION
NO.19/2012.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though matter is listed for preliminary hearing, by consent of learned Advocates appearing for the parties, same is taken up for final disposal.
2. Heard Sri.H.R.Gundappa learned counsel appearing for the petitioner and Sri. Ravi V.Hosamani, learned counsel appearing for the respondent.
3. Petitioner was appointed as a conductor in the respondent-Corporation in the year 1984 and was promoted as Traffic Controller in the year 1992. On account of unauthorised absence form 6/3/2004 to 19/8/2004 articles of charges was issued and not being satisfied with the reply given, a domestic enquiry was ordered to be held by the disciplinary authority. Thereafter, enquiry was conducted and report came to be :3: submitted by holding that charges made against employee as proved. Disciplinary authority accepted the report and dismissed the petitioner from service w.e.f. 6/4/2006. Petitioner did not peruse the matter. Subsequently, an application under Section 33 (c)(2) came to be filed by the petitioner contending interalia that corporation had not obtained approval form the Industrial Tribunal, Bangalore, in ID No.148/2002 pending before the Industrial Tribunal, Bangalore, and applicant being a workman and a member of the said Union he could not have been dismissed without prior approval. It was contended that since there was no approval granted by the Industrial Tribunal his order of dismissal is nonest and he was entitled for computation of amount payable to the petitioner. The Labour Court Hubli, by order dated 8/1/2013 rejected the application filed under Section 33(c)(2) of the I.D. Act and being aggrieved by said order applicant has filed the present writ petition.
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4. Tribunal has rejected the application on the ground that applicant did not have any existing right to file the present application and even otherwise applicant has not worked for the period from May 2006 till July 2012 and as such he is not entitled for the wages for the said period. During the pendency of the present writ petition, learned counsel appearing for the Corporation submitted that petitioner undertakes to give up his claim for not only back wages for the entire period but also for claim to continuity of service for the period May 2006 to July 2012 if petitioner would be reinstated into service and current wages would be paid from the date of reinstatement.
5. Pursuant to the said submission made by the learned counsel appearing for the petitioner an affidavit has been filed by way of undertaking, whereunder it is stated that petitioner is giving of his claim for back wages from the date of dismissal up to the date of reinstatement. This would not suffice for the simple reason that order of :5: dismissal passed against the petitioner has not been challenged and as such affidavit of undertaking ignoring the fact of the petitioner having not worked form May 2006 to July 2012 cannot be brush aside and the relief sought for can not be granted as prayed for. However, in view of the fair submission made by Sri.Ravi.V.Hosamani, learned counsel appearing for the petitioner that petitioner would be reinstated and paid current wages from date of reinstatement and denying continuity of service for the said period, I am of the considered view that it would meet the ends of justice. Hence, it is ordered that petitioner would not be entitled to relief of continuity of service till the date of reinstatement in the background of the order of dismissal having reached finality and petitioner having not worked for the said period and also not being entitled to back wages from date of dismissal till date of reinstatement. It is also noticed that Co-ordinate Bench of this Court in WP No.62640/2012 and connected matters disposed of on 3/7/2012 had ordered for re-instatement :6: of workman and taking this aspect also into consideration following order is passed:-
In the result, I pass the following:-
ORDER
i) Writ petition is hereby allowed in part.
ii) Order of dismissal dated 06.04.2006 Annexure-A is hereby quashed and respondent corporation is directed to re-instate the petitioner subject to the following conditions:-
a) Petitioner shall file an undertaking by way of affidavit before this Court as well as before the Corporation, that he would not claim back wages from the date of dismissal till date of reinstatement and continuity of service for the period of May 2006 to July 2012.
b) Respondent Corporation on such affidavit of undertaking being filed by the petitioner shall re-instate petitioner into service which :7: shall not be later than four weeks from the date of such undertaking being filed before Corporation and pay current wages from the date of reinstatement.
c) Petitioner shall also file an undertaking that in future he will not remain absent unauthorisedly or repeat such acts as was done earlier.
SD/-
JUDGE Vmb