PR MALLIKARJUNA SWAMY SINCE DECEASED BY HIS L.RS. SMT. R S KAVITHA W/O. LATE SRI P R MALLIKARJUNA SWAMY AND BABY LAKSHMI D/O. LATE PR MALLIKARJUNA SWAMY Vs. THE KARNATAKA STATE ROAD TRANSPORT CORPORATION REP. BY THE MANAGING DIRECTOR CENTRAL OFF

JUDGEMENT

(1.) PETITIONER , since deceased represented by legal representatives, a conductor in the Road Transport Corporation when terminated from service by order dt. 9.12.2005 initiated conciliation proceeding under the Industrial Disputes Act, 1947, for short 'ID Act' which when ended in a failure report, the State Government by order dt. 29.1.2009 referred the industrial dispute to the II Addl. Labour Court for adjudication whence it was registered as Ref.No. 9/2009. Before the Labour Court the petitioners advanced a plea that the workman since deceased, was a workman concerned in ID 148/2005 an adjudication over Charter of Demands pending on the file of the Industrial Tribunal, Bangalore and therefore it was incumbent on the part of the respondent -Road Transport Corporation to have obtained prior permission of the Industrial Tribunal to terminate his service for acts of misconduct not connected with the dispute. It was asserted that ID 148/2005 was referred for adjudication to the Industrial Tribunal by order dt. 2.9.2005 while the order of termination from service was on 9.12.2005. The respondent -Corporation though did not dispute the fact that petitioner was a workman concerned in ID 148/2005, nevertheless, the Labour Court recorded a finding that the employer having disputed that the deceased was not a workman concerned in the dispute, concluded that there was no necessity for obtaining the approval for termination, under Section 33(2)(b) of the 'ID Act' by award dt. 30.4.2011. Hence this petition.

(2.) I .D. No. 148/2005 pending on the file of the Industrial Tribunal, Bangalore is in respect of an industrial dispute over Charter of Demands raised by the KSRTC Staff and Workers Federation, a trade union, representing and espousing the cause of the workmen in the respondent -Corporation. Therefore, it cannot be said that the workman since deceased, a conductor in the respondent -Corporation was not a workman concerned since any award passed in ID 148/2005 extending the benefit of festival advance, dearness allowance, increments, promotions, education facility, medical facility, etc, subject matter of industrial adjudication since it would enure to the benefit of the workman including the deceased workman. In that view of the matter, it is needless to state that the mandate of law under Section 33(2)(b) of the Act required the respondent Corporation to make an application and obtain permission, in writing, of the Industrial Tribunal in ID 148/2005 before terminating the services of the workman since deceased. The Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, AIR 2002 SC 643 observed that the non -making of an application under Section 33(2)(b) for approval or withdrawing it before any order was passed is a clear case of contravention of proviso to Section 33(2)(b) and that the discharge or dismissal of a workman by the employer in contravention of the said mandatory provision renders the order of termination of service inoperative and void. The award of the Labour Court rejecting the reference, in the circumstances, is unsustainable.

(3.) IN the result, the writ petition is allowed in part. The award impugned is quashed. The order dt. 9.12.2005 of the respondent -corporation terminating the services of the deceased workman is declared inoperative and void. Reference is allowed entitling the legal representatives of the deceased to 50% back wages from 9.12.2005 to 14.9.2010 together with consequential benefits and continuity of service for terminal benefits.