M M NARAYANA Vs. MANAGEMENT OF KSRTC

JUDGEMENT

(1.) IN W.P.Nos.24118-120/2009, 504/2012, 10333/2012 and 10219/2012 workmen have called in question the award passed by the Labour Court whereunder claim petitions filed by the workmen has been dismissed.

(2.) W .P.Nos.6060/2012, 6016/2012, 47896/2011 and 3729/2012 have been filed by Bangalore Metropolitan Transport Corporation and Karnataka State Road Transport Corporation (both are referred to as 'Corporation' hereafter for the sake of brevity) questioning the awards passed by the Labour Court whereunder the claim petitions filed by the workmen have been allowed and orders of punishment of dismissal have been set aside as nonest on the ground that management has failed to take into consideration the pendency of I.D. 148/2005 and not complied with the provision of Section 33(2)(b) Industrial Disputes Act, 1947 by relying upon the judgment of the Honourable Apex Court reported in the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd., and Ram Gopal Sharma and Others reported in (2002) I LLJ 834.

(3.) IT is the contention of Sri. S. N. Murthy, learned Senior counsel appearing for the corporation that if there is a contravention or non compliance of section 33(2)(b) of the Industrial Disputes Act, 1947 there is a remedy available to such aggrieved workman namely such workman can approach the Authority, Court or Tribunal as the case may be under section 33A which is a special provision for adjudication of contravention of section 33(2)(b) by an employer, that too during the pendency of proceedings before Conciliation officer, Board, Arbitrator, Labour court, Tribunal and as such mere non-compliance of section 33(2) (b) would not result in the order of discharge or dismissal being nonest and if it is to be so construed then section 33A would become superfluous or in the alternate it becomes redundant. He would further submit that if an employer contravenes the provisions of section 33 during the pendency of the proceedings before Conciliation officer, Board, Arbitrator, Labour court, Tribunal, the workmen aggrieved by such contravention if any has to make complaint in writing to the authority prescribed under said section and such workmen cannot contend that award passed by the Labour court pursuant to such order of discharge or dismissal is nonest on account of employer not obtaining approval or the same being nonest on said ground. He would elaborate his submissions by contending that as on the date of order of dismissal passed in these cases the corporation has followed the law that was existing as on the said date namely the judgment of Hon Tote Apex Court in the case of M/s. Punjab Beverages Pvt. Ltd., Chnadigarh Versus Suresh Chand and another reported in AIR 1978 SC 995 which was holding the field and contends that in the instant cases workmen should have reported for duty if the order was nonest and admittedly these workmen did not choose to report for duty on the ground that order of dismissal being nonest and as such he contends now the workmen cannot take shelter under section 33(2)(b) of the Industrial Disputes Act to assail the order of dismissal as bad in law on the ground it is nonest. Supporting the arguments of Sri. S. N. Murthy, Smt. Shwetha An and, learned counsel who is also appearing for the corporation would submit that it has to be seen as to whether I.D. 148/2005 is an "Industrial Dispute" or not so as to cast a burden on the employer to obtain permission from said Tribunal when a workman is discharged or dismissed as required under Section 33(2)(b) of the Act. She also contends that section 33(2) (b) is not at all attracted since the Labour court has not examined as to whether these workmen are members of the union since no list of members was produced and as such no inference can be drawn unless it is demonstrated by cogent evidence that these workmen were members of the union which has raised dispute in I.D.148/2005 and unless it is demonstrated that these workmen are members of the union and they have been paying subscription to the said union it cannot be held or construed that on account of pendency of dispute in I.D. No.148/2005 raised by the trade union the employer namely the corporation had to seek approval of the said Labour court before dismissing these workmen from services of the corporation. She would also submit even if the order of dismissal is nonest the Labour court ought to have examined the case or claim on merits. In support of their submissions they have relied upon the following judgment: AIR 1978 SC 995 M/S Punjab Beverages Pvt. Ltd., Chandigarh Versus Suresh Chand and another, etc.