Karnataka High Court
Sri R Ravindra vs The Management Of M/S Rane Engine Valve ... on 9 October, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.58703/2015 (L - TER)
BETWEEN
SRI R.RAVINDRA
S/O LATE RAGHUNATH RAO,
AGED ABOUT 62 YEARS,
R/AT NO.5, FIRST FLOOR,
VINAYAKA LAYOUT,
TEACHERS LAYOUT ROAD,
VIDYARANYANAPURA,
BENGALURU - 560 097
REPRESENTED BY RANE ENGINE
VALVE EMPLOYEES ASSOCIATION
(FORMERLY CALLED AS KAR MOBILES
EMPLOYEES ASSOCIATION)
SINCE DECEASED REPRESENTED BY LRS.
SMT.UMA RAVINDRA
W/O LATE R.RAVINDRA
AGED ABOUT 52 YEARS,
R/AT NO.5, FIRST FLOOR,
VINAYAKA LAYOUT,
TEACHERS LAYOUT ROAD,
VIDYARANYANAPURA,
BENGALURU - 560 097
REPRESENTED BY RANE ENGINE
VALVE EMPLOYEES ASSOCIATION
(FORMERLY CALLED AS AKAR MOBILES
EMPLOYEES ASSOCIATION)
2
(AMENDMENT CARRIED OUT AS PER ORDER
DATED 19.12.2019.)
... PETITIONER
(BY SRI A.J.SRINIVASAN, ADVOCATE (VIDEO
CONFERENCING))
AND
THE MANAGEMENT OF M/S RANE ENGINE VALVE LTD.,
(FORMERLY CALLED AS KAR MOBILES LTD.,
BEFORE AMALGAMATION) 26, 1ST PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU - 560 058.
... RESPONDENT
(BY SRI MANJUNATHA B., ADVOCATE (PHYSICAL
HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE COMMON IMPUGNED AWARD DATED
23.2.2013 PASSED BY THE FIRST ADDITIONAL LABOUR
COURT, BENGALURU IN REF NO.7/97, APPLN NO.41/1997
& I.D.NO.163/1997 A CERTIFIED COPY OF WHICH AT
ANNEXURE-A ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the order dated 23.02.2013 passed by the I Additional Labour Court, Bengaluru (hereinafter referred to as 'the Labour Court' for short) in ref 3 No.7/1997, Application No.41/1997 and I.D.No.163/1997, dismissing the claim of the petitioner.
2. During the pendency of the subject writ petition, the petitioner expired and his wife being the legal heir was permitted to come on record vide order dated 19.12.2019.
3. For the sake of convenience, the parties are referred to as the Workman and the Management.
4. Heard Sri A.J.Srinivasan, learned counsel for the petitioner and Sri Manjunatha B., learned counsel for the respondent and perused the material on record.
5. Brief facts of the case leading to filing of the subject writ petition are that, the petitioner - Workman was appointed with the Management as a 4 trainee and was posted as an Assistant for doing the clerical work in the Bond Stores with effect from 27.04.1981. It transpires that the petitioner was further promoted on 23.03.1995 to the cadre of Senior Assistant Grade - 1 and thereafter, as the Senior Assistant Grade - 2, which the petitioner claims to be only a change in nomenclature, but continued to do the same clerical work.
6. The Workman was elected as the General Secretary of the Employees Union on 23.03.1995. The Management on 25.03.1995, transferred the Workman to a field job and re-designated him as Sales Representative on lower pay scale. During this process when the petitioner was working as Sales Representative, the Union in which the Workman was working was dissolved on 29.11.1995, fresh election was conducted and the Workman was elected as the 5 President of the Union but was not allowed to work as the President in the factory at Bangalore.
7. It further transpires that on the same day, the petitioner was further transferred to Belgaum and was relieved. But the petitioner did not report to duties, which lead to the Management to issue a show cause notice cum charge sheet to the Workman on 04.12.1995, alleging that the petitioner refused to accept the order of transfer. He was also placed under suspension on the ground of insubordination.
8. After the departmental enquiry, the Workman was imposed punishment of withholding two increments which was challenged by the Workman by seeking conciliation before the Conciliation Officer. On the conciliation ending in failure, the dispute was referred by the appropriate government before the Labour Court, Bengaluru, for its adjudication. During 6 the pendency of the dispute, the Management in modification of the earlier order of transfer deputed the petitioner to Belgaum in pursuance of which also the petitioner did not report at Belgaum.
9. The second act of the petitioner viz. not reporting to duty on deputation at Belgaum became the subject mater of disciplinary proceedings by issuance of a charge sheet on the same ground that the petitioner did not report to duties at Belgaum and pursuant to those proceedings, a penalty of dismissal from service was imposed upon the petitioner.
10. The second order of penalty i.e., dismissal from service imposed upon the Workman during the pendency of the dispute in reference No.7/1997 which was referred by the appropriate government challenging the penalty of withholding of two increments. The Workman raised a dispute before the 7 Conciliation Officer against the order of dismissal which also ended in failure and the dispute was referred by the appropriate government to the Labour Court for its adjudication by filing an application which was numbered as I.D.No.163/1997.
11. Thus, there were two proceedings referred by the appropriate government concerning the petitioner, the second one was filed during the pendency of the first one. In those circumstances, the Workman filed an application before the Labour Court in application No.41/1997, alleging that the Management had dismissed him from service during the pendency of the earlier dispute in ref.No.7/1997 without obtaining permission to dismiss him from service as required under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act' for short).
8
12. Section 33(2)(b) of the said Act, reads as follows:
"Section 33 : Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.
(1) xxxxxxxxxxxxxx (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied between him and the workman
(a) xxxxxxxxxxxxx
(b) for any misconduct not connected with the dispute, discharge or punish whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless 9 he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
(emphasis supplied) The afore-extracted statute, mandates that the Management is required to file an application seeking permission to dismiss an employee during the pendency of a dispute filed by such employee.
13. It is not in dispute that the Management had imposed upon the Workman a penalty of withholding of two increments which was referred to by the appropriate government in ref.No.7/1997, which is concerning the very same Workman. Second set of disciplinary proceedings were initiated by the Management pursuant to which the penalty of dismissal from service was imposed was during the 10 pendency of dispute before the Labour Court in Ref.No.7/1997. The penalty of dismissal from service imposed upon the Workman was also referred by the appropriate government to the Labour Court which is numbered as I.D.No.163/1997, in which the workman filed an application invoking Section 33(2)(b) of the said Act, claiming that the order of dismissal was void as it was contrary to Section 33(2)(b) of the said Act. The Labour Court while considering the action of the Management in dismissing the Workman from service ought to have at the outset considered the application filed by the Workman in terms of Section 33(2)(b) of the said Act.
14. The order of the Labour Court which dismissed all the three cases i.e., reference No.7/1997
- challenging the penalty of withholding of two increments, Application No.41/1997 - filed by the Workman alleging violation of Section 33(2)(b) of the 11 said Act and Industrial Dispute No.163/1997 - challenging the order of dismissal from service, does not bear consideration of the application filed by the Workman in terms of Section 33(2)(b) of the said Act and the same is erroneous and unsustainable.
15. In view of the aforestated reasons, the following:
a. The writ petition is allowed. b. The common order dated 23.02.2013, of the Labour Court dismissing all three cases together, i.e., Ref.No.7/1997, Appl.No.41/1997 and I.D.No.163/1997, without considering the application filed under Section 33(2)(b) of the said Act, is set aside.
c. The Labour Court is directed to consider the application filed by the Workman under Section 33(2)(b) of the said Act in accordance with law, pass appropriate orders and conclude the disputes referred 12 to it as expeditiously as possible, at any rate within nine months from the date of its first hearing.
All the contentions of both the parties are kept open.
Sd/-
JUDGE nvj CT:MJ