Karnataka High Court
The Chief Personal Manager vs Smt K K Sumitra on 14 August, 2025
-1-
NC: 2025:KHC:31640
WP No. 7086 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 7086 OF 2020 (L-KSRTC)
BETWEEN:
THE CHIEF PERSONAL MANAGER,
APPOINTING AUTHORITY AND
DISCIPINARY AUTHORITY,
BMTC CENTRAL OFFICE, BANGALORE,
HEREIN REPRESENTED BY
THE CHIEF LAW OFFICER,
BMTC, CENTRAL OFFICES,
KH ROAD, SHANTHINAGARA,
BANGALORE-560027.
...PETITIONER
(BY SRI SANJEEV B L, ADVOCATE)
AND:
SMT K K SUMITRA,
Digitally D/O K M KARUMBAIAH,
signed by C AGE MAJOR, HOUSE NO.67,
HONNUR LALBAGH SIDDAPUR,
SAB JAYANAGAR, IST BLOCK,
Location: BANGALORE-560011.
HIGH COURT ...RESPONDENT
OF (BY SRI SHEKAR L, ADVOCATE)
KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS OF THE PROCEEDINGS OF THE INDUSTRIAL
TRIBUNAL, BANGALORE PERTAINING TO SL. APPLICATION
NO.129/2016 WHICH HAS CULMINATED IN ITS ORDER DATED
25.05.2018 PRODUCED AT ANNEXURE-D AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
-2-
NC: 2025:KHC:31640
WP No. 7086 of 2020
HC-KAR
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL ORDER
This Writ Petition is filed assailing the order dated 25.05.2018 in Application No.129/2016 filed under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. The petitioner before this Court is the employer. In terms of the impugned order, the Industrial Tribunal has rejected the application under Section 33(2)(b) of the Industrial Disputes Act, 1947 and declined to grant approval for order dismissing the respondent-employee.
3. The respondent-employee was subjected to a domestic enquiry by the petitioner-employer. It is alleged by the employer that the workman did not report to duty despite the transfer order transferring the workman from Depot No.15 to Depot No.21. The domestic enquiry commenced in the year 2006. The enquiry officer concluded the enquiry in the year 2007. The second show cause notice was issued on 01.02.2007. The workman issued a reply -3- NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR contesting the findings. The penalty of dismissal was imposed on 17.02.2016.
4. The petitioner-Corporation moved an application under Section 33(2)(b) of the Act, 1947, seeking approval as one more case was pending against the concerned workman.
5. Before the Tribunal, the respondent-workman contended that the enquiry was not fair and proper. The Tribunal also concluded that the enquiry is not fair and proper. The employer did not chose to lead evidence relating to the charges. Thereafter, the case was posted for evidence on the plea of victimization and compliance of requirement of Section 33(2)(b) of the Act, 1947 .
6. Both parties led evidence on the merits of the case. The Tribunal concluded that the charges were not proved, the requirements of Section 33(2)(b) of the Act, 1947 were not complied. Consequently, Tribunal rejected the application seeking approval for respondent-employee's dismissal order.
-4-
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR
7. Aggrieved by the aforementioned order, the petitioner-employer is before this Court.
8. Learned counsel for the petitioner submits that after recording evidence, the Tribunal was under an obligation to consider whether the charges were proved or not. Without considering the evidence on record, the Tribunal erred in holding that it is a case of victimization and erroneously dismissed the application under Section 33(2)(b) on the premise that last drawn wages are not paid to the workman as per the revised scale though the wages payable to the respondent-employee as on the last day of reporting to duty was paid to the workman.
9. Learned counsel for the petitioner urged that the workman filed a petition before the Karnataka State Women's Commission, assailing the order transferring the workman, and the said Commission, without jurisdiction, directed the petitioner to assign the workman to the post and place where she was posted prior to the order of transfer.
-5-
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR
10. The petitioner-Corporation filed W.P.No.48227/ 2012, challenging the order passed by the Karnataka State Women's Commission and the direction issued by the Commission was stayed by this Court. Later, on 17.02.2016, the workman was dismissed from service and approval was sought as the dispute between the employer and workman was pending consideration. On 10.11.2016, this Court allowed the Writ Petition No. 48227/2012 and set aside the order passed by the Karnataka State Women's Commission. The workman did not report to duty ever since the order of transfer, which was passed in the year 2006 and the workman is not entitled to any backwages on the principle "no work no pay".
11. The Learned counsel for the respondent- workman would submit that the respondent was not allowed to report to duty despite the respondent requesting to allow her to report to duty.
12. It is also urged on behalf of the respondent that the claim relating to denial of backwages on the principle of -6- NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR "No work no pay" cannot be urged in this proceeding as the scope of enquiry before the Tribunal under Section 33(2)(b) was limited.
13. Even in the Writ Petition filed earlier, challenging the order of the women's commission, the petitioner has not raised a contention that the workman did not report to duty despite being called to report to duty. It is urged on behalf of the workman that neither the transfer order nor the reliving order was issued to the workman, and it is not a case where the workman did not report to duty despite the instructions to report to duty.
14. Learned counsel for the respondent-workman also urged that the requirement of Section 33(2)(b) of the Act, 1947, is not complied with, since one month's wages payable to the workman as on the order of dismissal were not paid.
15. Learned counsel for the petitioner, by way of reply, would contend that the wages paid to the workman as on the date when she last reported to duty were paid, and -7- NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR the respondent-workman is not entitled to claim the wages payable as on the date of dismissal.
16. It is also urged that when the Writ Petition challenging the order of the women's commission was pending since 2012, the workman could have moved an application seeking direction to report to duty.
17. This Court has considered the contentions and perused the records.
18. It is submitted that the respondent-workman has attained the age of superannuation in 2018.
19. Before the Tribunal, both parties led evidence. The Tribunal has analysed the evidence. It has come to the conclusion that the alleged transfer order transferring the petitioner from Depot 15 to Depot 21 was not served on the workman. The order relieving the petitioner is also not communicated to the workman. The Tribunal also holds that in case the order relieving the workman is communicated to the workman, without the transfer order being communicated, the workman cannot report to the place -8- NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR where she is allegedly transferred. Thus, the Tribunal has concluded that the charge of unauthorised absence is not established.
20. Thereafter, the Tribunal has also considered the aspect regarding victimisation and has concluded that the petitioner-Corporation victimised workman.
21. The Tribunal has also recorded a finding that the wages payable under Section 33(2)(b) of the Act, 1947, are not paid. Requirement of Section 33(2)(b) of the Act, 1947 is mandatory. To dismiss the workman, the employer must pay the workman the wages for one month. Admittedly, the petitioner has not paid the wages as per the revised scale. The employer has paid the wages payable in 2006, though the workman was dismissed in 2016. The wages payable in 2016, which were revised by then, were not paid.
22. Section 33(2)(b) of Act, 1947 though does not specifically provide that the wages payable to the workman is the wages payable on the date of dismissal, looking into the object of Section 33(2)(b) of Act, 1947 it is evident that -9- NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR the wages payable are the wages as on the date of dismissal from employment. There is nothing in the provision to hold that the wages payable under Section 33(2)(b) of the Act, 1947, are the last wages paid to the workman, in a situation where the workman has not received wages for a considerable period, when she is facing the disciplinary enquiry without any suspension order. Thus, this Court is of the view that one month's wages payable under Section 33(2)(b) of the Act, 1947, are the wages payable as on the order of dismissal and not the wages payable as on the date of initiation of disciplinary enquiry. Since wages payable to the respondent-workman, as on the order of dismissal are not paid, the requirement of Section 33(2)(b) of the Act, 1947 has not been complied with.
23. The Court has also taken note of the fact that no records are produced to show that the workman reported to duty after knowing about the transfer order, at least when the disciplinary enquiry commenced on the charges that the workman did not report to duty in compliance of the transfer order. It appears that the respondent workman has not
- 10 -
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR sought any direction from this Court, in the earlier writ petition filed by the employer, to permit the workman to report to duty. Whether backwages to be denied to the respondent-workman on this count as urged on behalf of the petitioner.
24. It is relevant to notice that the impugned order was passed in a proceeding under Section 33(2)(b) of the Act, 1947. The scope of enquiry is limited to find out whether approval is to be granted to the order of dismissal.
25. Though in the written submissions filed before the Court, the petitioner has provided several dates on which the intimation was sent to the workman to report to duty, it appears except for the letters dated 08.03.2006 and 08.05.2006, the documents in support of such contentions raised in the written submissions are not produced before the Tribunal. There is no postal acknowledgement produced for having delivered the letter dated 08.03.2006 and letter dated 08.05.2006 returned with endorsement "not in station".
- 11 -
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR
26. More than anything else, the petitioner has not raised a contention that the workman did not report to duty even after instruction/s or orders to report to duty during the domestic enquiry or pendency of earlier writ petition or any time before dismissal in 2016. Thus, such a prayer for denying the backwages on the principle of "No work no pay"
need not be considered in this petition.
27. Learned counsel for the petitioner has relied on the judgment of the Apex Court in John D'souza vs Karnataka State Road Transport Corporation1. In the said judgment, the Apex Court has dealt with the difference in the scope of Section 33(2)(b) and Section 10(1)(c) and
(d) of the Act, 1947. The ratio laid down therein is of little assistance to the contention raised by the petitioner.
28. Reference is also made to the judgment of the Apex Court in Bharat Iron Works vs Bhagubhai Balubhai Patel 2. The said judgment dealt with the plea and proof of victimisation of unfair practice. In the instant case, the 1 2019(18) SCC 47 2 1976(1) SCC 518
- 12 -
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR Labour Court has held that the wages payable to the workman are not paid as such, and there is no compliance with Section 33(2)(b) of the Act, 1947. Hence, the aforementioned judgment does not assist the petitioner.
29. Reliance is also placed on the judgment of coordinate Bench of this Court in Fouress Engineering India Limited vs. K.Siddagangaiah3. In the said case, the co-ordinate Bench of this Court has considered the scope of enquiry under Section 33(2)(b) of Act, 1947. The judgment of the Apex Court in Y.P.Sara Bai vs. Union Bank of India4 dealt with the question relating to the penalty imposed on account of unauthorised absence and the scope of interference in judicial review. The question as to what is the "wage payable on the date of dismissal" and the consequence of its not payment was not decided in the said judgments.
30. Likewise the judgment of the Apex Court in Dr. Nagorao Shivaji Chavan vs Dr Sunil Purushottam 3 WP 10733/2023 read with WP 12149/2020 4 (2006) 5 SCC 377
- 13 -
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR Bhamre5 and the judgment of the Division Bench of this Court in Smt Zohra Jabeen vs The State of Karnataka6 do not address the question whether the "one month's wages" payable is the wages payable as on the date of dismissal or the wages last paid if there is difference in the last paid wages and the wages payable on the date of dismissal.
31. The judgment in Gujarat Electricity Board vs Atmaram Sumgomal Poshani7 deals with the question of not obeying the transfer order and termination of service. Again, this judgment does not deal with the question relating to non-compliance with the requirement of Section 33(2)(b) of the Act, 1947.
32. Under these circumstances, this Court does not find any error in the order passed by the Tribunal in dismissing the application under Section 33(2)(b) of the Act, 1947, seeking approval for the order of dismissal. 5 (2019 )13 SCC 788 6 Writ Petition No.22/2023 7 1999(2) SCC 602
- 14 -
NC: 2025:KHC:31640 WP No. 7086 of 2020 HC-KAR
33. As far as question relating to the denial of backwages on the principle of "No work no pay" is concerned, this question was not raised before the Tribunal and was not raised in the pleading before this Court. Whether such a question can be raised in a proceeding under Section 33(2)(b) of the Act, 1947, is another question. Hence, the petitioner's contention that the workman is not entitled to backwages on the premise workman did not work from 2006 to 2016 till her dismissal need not be decided in this petition under Article 227 of the Constitution of India.
34. It is open to the petitioner to raise the question relating to the denial of backwages in any other appropriate proceeding, if so advised in law.
35. Accordingly, the Writ Petition is dismissed.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE BRN, CHS List No.: 1 Sl No.: 21