Karnataka High Court
The Divisional Controller vs Sri H G Basavegowda on 16 September, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P. 8297/12
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
WRIT PETITION No.8297/2012 (L-KSRTC)
BETWEEN:
The Divisional Controller
KSRTC, Davanagere Division
Davanagere
Rep. by Chief Law Officer
KSRTC, Bangalore .. PETITIONER
(By Sri. K.S. Bharath Kumar , Adv.)
AND:
Sri. H.G. Basavegowda
Traffic Controller
(Conductor, Badge No.449)
Shimoga Depot
KSRTC, Davanagere Division
Davanagere .. RESPONDENT
(By Sri. S.P. Ramesha, Adv.)
2
W.P. 8297/12
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the order at
Annexure-C dated 4.3.2011 in I.D. No.258/2009 passed by
the Industrial Tribunal, Hubli, etc.
This petition coming on for Preliminary Hearing 'B'
Group this day, the Court made the following:
ORDER
Petitioner, a Road Transport Corporation appointed the respondent as a conductor and having found that he had committed certain acts of misconduct, issued an articles of charge where thereafterwards the disciplinary authority held that the charge proved, and by order dated 30.7.1997/26.9.1997, imposed the punishment of reducing two increments with cumulative effect. That order when subject matter of a conciliation proceeding initiated twelve years thereafter, ended in a failure report of the conciliation officer, whence the State Government exercising a jurisdiction under the Industrial Disputes Act, 1947 (for short 'the Act') referred, for adjudication, the alleged Industrial dispute to the Industrial Tribunal, Hubli, registered as I.D. No.258/2009. Parties having filed their 3 W.P. 8297/12 respective claim and counter statement prompted the Industrial Tribunal to frame issues. In the trial, respondent was examined as W.W.1 while a witness for the petitioner was examined as M.W.1 and documents marked as Exs.M.1, M.1(a) and M.1(b). The Industrial Tribunal having regard to the materials on record though observed that no domestic enquiry was held into the allegation of misconduct, nevertheless, since the petitioner-Corporation laid before it, for the first time, evidence in proof of the charge, returned a finding that the charge was proved. In other words, the misconduct was established. Exercising a jurisdiction under Section 11-A of the Act, observed that since the punishment was on the higher side interfered with the order by modifying the punishment to withholding of one increment of the year 1997 without cumulative effect and without affecting future increments of the workman, together with monetary benefits. On the issue of delay, the Industrial Tribunal held that in view of decision in KARAN SINGH -vs- EXECUTIVE ENGINEER, 4 W.P. 8297/12 HARYANA MARKETING BOARD1, returned a finding in favour of the workman holding that the State Government to refer a dispute for adjudication at any point of time. Hence, this petition.
2. There is no dispute that the order passed by the petitioner - Corporation imposing the punishment of withholding of increments for proved misconduct was subject matter of conciliation, initiated 12 years after the order. Though the State Government exercised its jurisdiction under the Act to refer the industrial dispute for adjudication, and the petitioner - Corporation did not call in question the order of reference of the dispute by filing a writ petition advancing a plea of a stale claim, nevertheless, a duty was cast upon the respondent - workman to explain to the satisfaction of the Industrial Tribunal, the delay in seeking a reference. In other words, workman ought to have placed material before the Industrial Tribunal to establish that the industrial dispute, 1 2008(1) LLJ 289 5 W.P. 8297/12 even after 12 years, was alive and could be subject matter of an adjudication under the Act, meaning thereby that 12 years after the order of punishment, could it be said that there existed an industrial dispute so as to enable the Government to invoke its jurisdiction over an existing industrial dispute to be referred for adjudication.
3. Respondent - workman admittedly, did not place material before the Industrial Tribunal to sustain his claim that an industrial dispute existed even at the end of the 12th year after the passing of the order of punishment. Hence it cannot but be said that the challenge to the order of punishment is a stale claim. The Industrial Tribunal without applying its mind to the Labour Jurisprudence over either condoning or not to condone the delay or over the existence of a live industrial dispute, in a mechanical manner in one sentence, at paragraph-13 of the award impugned, observed that, in view of the decision in Karan Singh (supra), the question of delay does not arise. This finding, in my considered opinion, is perverse and 6 W.P. 8297/12 unsustainable.
4. It is no doubt true that in Karan Singh's case, the Apex Court having extracted the observations in:
i ) National Engineering Industries Limited -vs- State of Rajasthan and Others ((2000) 1 SCC 371) at paragraph-24 ;
(ii) Sapan Kumar Pandit -vs- U.P.State Electricity Board and Others ((2001) 6 SCC 222) at paragraph-
15;
(iii) Nedungadi Bank Ltd. -vs- K.P.Madhavankutty and Others ((2000) 2 SCC 455) at paragraph-6;
(iv) S.M.Nilajkar and others -vs- Telecom District Manager, Karnataka, ((2003) 4 SCC 27) at paragraph-17;
as followed in Management of Sudamdih Colliery of Bharat Coking Coal Limited -vs- Their Workers and Others (2006(1) Supreme 282) and Chief Engineer, Ranjit Sagar Dam and Another -vs- Sham Lal ((2006) 9 SCC 124), concluded that so far delay in seeking the reference is concerned, no formula of universal application can be laid down and it would depend upon the facts of each individual 7 W.P. 8297/12 case.
5. In Assistant Engineer, C.A.D., Kota -vs- Dhan Kunwar2, Their Lordships having noticed the observations in Nedungadi Bank's case (supra) and S.M.Nilajkar's case (supra), observed that the delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. In Sapan Kumar Pandit's case (supra), the Apex Court observed thus:
"15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government 2 AIR 2006 SC 2670 8 W.P. 8297/12 has chosen to refer the dispute for adjudication under Section 4-K of the U.P.Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination."
6. In the case on hand, it is seen that the respondent
- workman did not even lay a plausible explanation to the cause of the delay of 12 long years, though filed a claim statement. The order imposing punishment of withholding of increments is dated 30.7.1997/26.9.1997, while the order of reference is dated 11.5.2009. In the light of these facts, it is crystal clear that, there was no live dispute as held in Sapan Kumar Pandit's case (supra). In that view 9 W.P. 8297/12 of the matter, the finding of the Industrial Tribunal at paragraph-13 of the award impugned over the issue relating to delay, is unsustainable and perverse.
7. Even on merits, the Industrial Tribunal before whom the petitioner - Corporation, for the first time, placed relevant material constituting substantial legal evidence over the allegation of misconduct, accepted the same and held the misconduct proved.
8. Although a faint effort was made by the learned Counsel for the respondent - workman that a domestic enquiry was not held before the imposition of the punishment and consequently, the order of punishment being a severe punishment, when not preceded by a domestic enquiry, is null and void, by placing reliance upon the opinion of a learned Single Judge in Hubert Lobo -vs- The Presiding Officer, Labour Court, Mangalore and Others3, that submission is unacceptable. The facts obtaining therein relate to imposition of a punishment of 3 (1997(4) KLJ 524) 10 W.P. 8297/12 withholding of increments for six months without cumulative effect; subject matter of adjudicating of an industrial dispute before the Industrial Court and the question that arose for consideration was whether such a punishment could be termed as a minor or a major punishment. That judgment does not make reference to the authoritative pronouncement of the Apex Court in the case of The Workmen of M/s.Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. -vs- The Management and others4, more appropriately the principles set out in paragraph-29 therein and in particular, sub-paragraphs-4 and 9 entitling the Management to lead evidence for the first time over the charges before the Labour Court and if such evidence is found to be credible and the misconduct proved, the Labour Court would be denuded of its jurisdiction to interfere with the punishment, except in cases of punishment of dismissal or termination from service, is found to be harsh or suffer from victimization, by invoking Section 11-A of the Act. This judgment when not 4 (1973(1) LLJ 278) 11 W.P. 8297/12 considered by the learned Judge in Hubert Lobo's case (supra), it is a decision perincurium and not a precedent.
9. The misconduct alleged when established and accepted by the Labour Court on the premise that the material on record is sufficient to prove the charge against the workman, the punishment not being one of dismissal or termination from service, the Labour Court had no jurisdiction to invoke Section 11-A of the Act to interfere with the order of punishment and reduce the punishment to one of withholding one increment of the year 1997 without cumulative effect and without effecting future increments of the workman, in the light of Section 11-A of the Act and the decision of the Apex Court in South Indian Cashew Factories Workers' Union -vs- Kerala State Cashew Development Corpn.Ltd. & Others 5, more appropriately the following observation:
"16. . . . . Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as 5 (2006) 5 SCC 201 12 W.P. 8297/12 clearly mentioned in the section itself. xxx"
10. In the circumstances, the award of the Industrial Tribunal bristles from legal infirmities, calling for interference.
In the result, this petition is allowed. The award of the Industrial Tribunal is quashed and the reference rejected.
Sd/-
JUDGE KNM/-