R. RANGASWAMY Vs. THE VICE CHAIRMAN & MANAGING DIRECTOR, KSRTC AND THE BOARD OF DIRECTORS & APPELLATE AUTHORITY, REP. BY BOARD SECRETARY

JUDGEMENT

(1.) PETITIONER , while discharging duties as 'Junior Assistant' in the respondent - Public Road Transport Corporation, is said to have committed certain acts of misconduct along with others, by which Rs. 3,53,044/ - was misappropriated. The disciplinary proceeding when commenced, domestic enquiry held, the Enquiry Officer submitted a report, holding charges proved, following which the Disciplinary Authority by order dated 17.8.2006, terminated the petitioner from service, with a direction to recover Rs. 3,53,044/ - from out of the gratuity payable by way of forfeiture. That order was subject matter of ID No. 28/2007 before the III Additional Labour Court, Bangalore, whence after a trial, the Labour Court recorded a finding that the charge against the petitioner was proved and accordingly found no case made out for invoking the extraordinary jurisdiction under section 11 -A of the Industrial Disputes Act, 1947 [for short 'Act'] and accordingly by Award dated 22.11.2010, rejected the dispute. Petitioner, aggrieved by the said Award, filed this petition on 17.2.2012, without explaining the delay in filing the petition. In the memorandum of writ petition, at paragraph -23, for the first time after six years from date of dismissal from service, a plea is raised that the order of dismissal suffers from violation of section 33[2][b] of the Act, by not securing approval of the Industrial Tribunal in ID No. 48/2005, in which the petitioner is the concerned workman.

(2.) REGARD being had to the fact that the petitioner employed as a 'Junior Assistant' is a concerned workman in ID No. 48/2005, relating to charter of demands over conditions of service of employees in the respondent - Road Transport Corporation, it was the legal obligation of the respondents to have moved an application under section 33[2][b] of the Act in ID No. 48/2005 for approval of the action of dismissal of the petitioner from service. It is needless to state that in the light of the decision of the Constitution Bench of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., v. Ram Gopal Sharma and Others : 2002 [I] LLJ 834, the order of dismissal dated 17.8.2006 is non est.

(3.) IN the result, this petition is allowed in part. The Award impugned is quashed, the order dated 17.8.2006 dismissing the petitioner from service is declared non est, since the petitioner had not raised plea of violation of section 33[2][b] of the Act before the Labour Court though having invoked the provision of section 10[4 -A] of the Act, and having done so for the first time in this petition filed on 17.2.2012, in the absence of explanation for the delay in filing the writ petition, the petitioner is disentitled to the benefit of back wages. The respondent - Corporation is directed to reinstate the workman - petitioner with continuity of service and consequential benefits, while reserving liberty to the respondents to initiate appropriate legal action seeking approval of the termination of services of the petitioner.