Karnataka High Court
Karnataka State Road vs H Hirannaiah on 30 December, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.19195/2015 (L - KSRTC)
C/W
WRIT PETITION No.12250/2019 (L - KSRTC)
IN WRIT PETITION No.19195/2015 (L - KSRTC)
BETWEEN
KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
HASSAN DISVISION,
HASSAN,
BY ITS DIVISIONAL CONTROLLER,
REPRESENTED BY ITS
CHIEF LAW OFFICER.
... PETITIONER
(BY SMT.H.R.RENUKA, ADVOCATE (PHYSICAL HEARING))
AND
H.HIRANNAIAH
DRIVER, ADULT,
REPRESENTED BY
GENERAL SECRETARY,
KSRTC EMPLOYEES UNION,
INTUC SRI MANJUNATHA BUILDING,
2
ADUVALLY MAIN ROAD,
HASSAN - 573 201.
... RESPONDENT
(BY SRI V.PADMANABHA KEDILAYA, ADVOCATE (PHYSICAL
HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD DTD.28.5.2014 PASSED BY THE INDUSTRIAL TRIBUNAL,
MYSORE IN REF.NO.11/2012 [ANNEX-F].
IN WRIT PETITION No.12250/2019 (L - KSRTC)
BETWEEN
SRI H.HIRIANNIAH
S/O. HANUMA GOWDA,
AGED ABOUT 64 YEARS,
MARADI VILLAGE,
NEAR MARAMMA TEMPLE,
POST: GORUR,
AAKALAGUDI TALUK,
HASSAN DISTRICT - 573 211.
... PETITIONER
(BY SRI V.PADMANABHA KEDILAYA, ADVOCATE)
AND
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
REP. BY THE DIVISIONAL CONTROLLER,
HASSAN DIVISION,
HASSAN - 573 211.
... RESPONDENT
(BY SRI , ADVOCATE (VIDEO
CONFERENCING / PHYSICAL HEARING))
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT
TO PAY BACK ALL THE WITHHELD SALARY, D.A. ETC., FROM
31.12.2003 TILL HIS RETIREMENT AND ALSO ALL PENSIONARY
BENEFITS INCLUDING GRATUITY UNDER GRATUITY ACT, WITH THE
INTEREST AT 18% FROM THE RECOVERED DATES TILL PAYMENT
BY THE RESPONDENT TO THE PETITIONER ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.10.2020, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In Writ Petition No.19195/2015 The Karnataka State Road Transport Corporation (hereinafter referred to as 'the Corporation' for short) has filed this writ petition calling in question the award dated 28.05.2014 of the Industrial Tribunal, Mysuru (hereinafter referred to as 'the Tribunal' for short) in reference No.11/2012 whereby, the Tribunal allowed the reference by setting aside the order of penalty and directing the respondent to be entitled to all withheld benefits except backwages. 4 In Writ Petition No.12250/2019
2. The Workman has preferred this writ petition being aggrieved by the award of the Tribunal in the aforestated reference, seeking backwages and all terminal benefits which are not granted by the Tribunal.
3. The parties would be referred to as the 'Corporation' and the 'Workman' for the sake of convenience.
4. Brief facts of the case leading to filing of the writ petitions are that, the Workman at the relevant point of time was working as a Driver at Hassan depot of the Corporation and while on duty on 17.06.1999, was driving a bus bearing registration No.KA-13-F-670, plying from Ramanathpura to Bangalore, when the bus reached the Government Hospital at Kunigal, dashed against a pedestrian who died due to the injuries sustained on account of the impact of the accident.
5. This incident resulted in issuance of a charge sheet dated 27.10.1999, against the petitioner for rash and 5 negligent driving on 17.06.1999. Pursuant to the conduct of enquiry proceedings, the Enquiry Officer held the petitioner guilty of the allegations levelled in the charge sheet after which the Disciplinary Authority considering the report of the Enquiry Officer and the reply submitted by the Workman, imposed the penalty of reduction of the grade of the Workman from selection grade to the minimum scale of a driver with cumulative effect, by his order dated 31.12.2003.
6. The Workman raised an industrial dispute in the year 2012, against the imposition of the penalty on the reference made by appropriate government in reference No.11/2012 under Section 10(1A) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act' for short). The Tribunal held the enquiry to be fair and proper considering it as a preliminary issue and in terms of Section 11A of the said Act, held that the charges were not proved and set aside the order of punishment by its award dated 28.05.2014. The Tribunal further directed the Workman to be entitled to all 6 other benefits except backwages. The writ petition No.19195/2015 is filed by the Corporation challenging the said award, writ petition No.12250/2019 is filed by the workman claiming backwages.
7. Heard Smt. H.R.Renuka, learned counsel appearing for the Corporation and Sri V. Padmanabha Kedilaya, learned Counsel for the Workman.
8. Learned counsel appearing for the Corporation would contend that the Tribunal has grossly erred in allowing the reference by setting aside the penalty notwithstanding the fact that the charges against the Workman was proved and the fact that the dispute itself was raised after 9 years of the imposition of the penalty.
9. On the other hand, learned Counsel for the Workman would contend that the delay should not defeat justice as the Workman has been victimized by the Corporation and it is on that ground, the Tribunal interfered with the findings and set 7 aside the order of penalty and would submit that the writ petition filed by the Corporation be dismissed as it is one of the prayers made in the writ petition filed by the Workman.
10. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
11. The undisputed facts are, the Workman while driving bus bearing registration No. KA-13-F-670, plying from Ramanathpura to Bangalore, when the bus reached the Government Hospital at Kunigal, dashed against a pedestrian who died due to the injuries sustained on account of the impact of the accident and pursuant to certain domestic enquiry, imposed penalty of reduction from selection grade to minimum scale of driver with cumulative effect by an order of penalty dated 31.12.2003. The dispute that was raised by the Workman before the Conciliation Officer was on 31.01.2012, 8 after about 9 years of the imposition of the penalty against the Workman.
12. In the entire claim petition, there is no whisper about any explanation by the Workman for the inordinate delay of 9 years in raising the dispute. The Tribunal also accepts and records that there is no explanation for the delay in raising the dispute. Answering the plea of delay raised by the Corporation, at paragraph No.19, the Tribunal holds as follows:
"19. In his Claim Statement, the First Party has contended that due to unfair labour practice and victimization attitude of the Second Party, he or the Union could not raise the dispute earlier. But, he has not explained as to how and in what manner, the Second Party was following unfair labour practice and victimization attitude against him, which prevented him or the Union from raising the dispute without delay. The First Party has not come forward to produce any evidence to substantiate his 9 contention. In the absence of such evidence and explanation of the First Party as to how and in what manner the Second Party was following unfair labour practice and victimization attitude against him, it is not fit to accept his bare contention that because of unfair labour practice and victimization attitude, he could not raise the dispute earlier. There is no other explanation on behalf of the First Party about the said inordinate delay. As such, it is not proper to ignore the said inordinate delay of 7 years on the part of the First Party in raising the dispute. However, as observed above, the said delay has not caused any prejudice to the Second Party."
(emphasis supplied) The afore-extracted finding of the Tribunal clearly indicates that there was no explanation given by the Workman for the delay in raising the dispute or any factor that presented him at any point of time in those 9 years to raise the dispute. The Apex Court in the case of U.P.STATE ROAD 10 TRANSPORT CORPORATION VS. BABU RAM reported in (2006) 5 SCC 433, wherein it has held as follows:
"7. So far as delay in seeking the reference is concerned, no formula of universal application can be laid down. It would depend on facts of each individual case.
8. However, certain observations made by this Court need to be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 :
2000 SCC (L&S) 283 : AIR 2000 SC 839] it was noted at para 6 as follows: (SCC pp. 459-60) "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner.
There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would 11 depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent."
9. In S.M. Nilajkar v. Telecom District Manager [(2003) 4 SCC 27 : 2003 SCC (L&S) 380] the position was reiterated as follows (at SCC pp. 39-40, para 17):
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute, it does not mean that the dispute can be raised at any time and without regard to 12 the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an Industrial Tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of most of the old workmen was held to be fatal in Shalimar Works Ltd. v. Workmen [(1960) 1 SCR 150 : AIR 1959 SC 1217] . In Nedungadi Bank Ltd. v. K.P. Madhavankutty [(2000) 2 SCC 455 : 2000 SCC (L&S) 283 : AIR 2000 SC 839] a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta v. Union of India [1993 Supp (4) SCC 67 : 1994 SCC (L&S) 182 :
(1994) 26 ATC 228 : 1993 AIR SCW 2214] it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants to any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the 13 Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Labour v.
Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228 : AIR 1987 SC 2342] the Department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the Scheme. On 28- 12-1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal-cum-Labour Court. We do not think that the appellants deserve to be non-suited on the ground of delay."
The above position was highlighted recently in Sudamdih Colliery of Bharat Coking Coal Ltd. v. Workmen [(2006) 2 SCC 329 : 2006 SCC (L&S) 306 : (2006) 1 Supreme 282] .
10. It is to be noted that the High Court has very cryptically disposed of the writ petition. The workman has not placed any material to show that he had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. The High Court, on a 14 hypothetical basis has assumed that the dispute might have been raised promptly but delayed by the State Government and he cannot be penalised for delay in finalising the conciliation proceedings and the reference. But neither the Labour Court nor the High Court has even noted the factual position. The conclusion was based on surmises and conjectures."
The aforestated judgment of the Apex Court is followed by this Court in plethora of judgments. In terms of the afore- extracted judgment of the Apex Court and the fact that there was no explanation for the delay in raising the dispute, the dispute itself was not maintainable before the Tribunal.
13. The penalty that is imposed on the Workman is that of reduction to the minimum scale in the post of driver from selection grade, as a result of which the Workman would be getting lesser pay every month, on every salary date. This would be a reminder to the Workman every month with regard to the penalty that is imposed. Therefore, having kept quiet for 9 years could not have raised a dispute later. A Co- Ordinate Bench of this Court in Writ petition No.34254/2016 15 disposed on 21.10.2016, at paragraph Nos.6 to 8 has held as follows:
"6. Punishment order was passed on 04.08.1994. The reference was made on 23.08.2004 to the Tribunal. Though the reference upon adjudication was rejected on 03.08.2008 and certified copy became available on 30.08.2008 itself, this petition was filed after more than eight years period. The petitioner having been imposed with the punishment of reduction by two incremental stages could not have kept quite for long period i.e., to raise the dispute and seek reference to the Industrial Tribunal. There is delay of about 10 years in the matter of making the reference. Even after the reference was rejected, there is delay of more than eight years in filing this writ petition.
7. In STATE OF MADHYA PRADESH & ORS VS. NANDLAL JAISWAL & ORS, 1986 (4) SCC 566, it has been held that the High Court in exercising of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further held that, if there is delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction.
8. In the present case, there is inordinate delay in filing. Writ jurisdiction cannot be permitted to be invoked after the lapse of more than seven years from the date the reference was rejected by the Tribunal. The averments made in para 3 of the 16 writ petition for ignoring of the delay is bald. The delay being inordinate has not been satisfactorily explained. The petitioner having suffered the punishment dated 04.08.1994 and the punishment order being that of reduction of two increments permanently, on every salary date the petitioner was remained of the said punishment. Despite such a situation, the petitioner has not shown any eagerness even in knowing the stage of the case by approaching the Tribunal. The averments made in para 3 of the petition being bald and make believe, the inordinate delay and laches cannot be condoned."
In terms of the afore-extracted judgment, the very dispute was not maintainable before the Tribunal on account of sheer delay which was unexplained by the Workman in raising the dispute. Since the dispute itself is not maintainable on account of the delay, no other ground urged by the Workman need be considered. The award of the Tribunal setting aside the order of punishment and giving consequential directions would all be rendered contrary to law.
14. The writ petition filed by the Workman seeking backwages and other benefits deserves to be dismissed on 17 account of the findings rendered hereinabove. Therefore, the following:
ORDER a. The writ petition No.19195/2015 filed by the Corporation is allowed.
b. The order dated 28.05.2014, of the Tribunal is quashed.
c. The writ petition No.12250/2019 filed by the Workman is dismissed.
d. The order of penalty dated 31.12.2003, impugned stands restored.
Sd/-
JUDGE Nvj CT:MJ