MANAGEMENT OF KSRTC Vs. RI SIDDARAJ R V

JUDGEMENT

(1.) The respondent-workmen was charge sheeted for a misconduct that he was unauthorisedly absent. The charge sheet dated 16th July 2007 is produced as Annexure-A. The charge leveled against the workman is that with effect from 26th February 2007, he remained absent unauthorisedly without submitting leave application and was directed to make a reply. Though the respondent-workman was served, but he remained absent and he has not made any reply. Thereafter enquiry officer was appointed and enquiry proceedings commenced and it has resulted in holding, the charge is proved and the punishment order of dismissal from service dated 28th October 2010 came to be passed. The said dismissal order was issued in pursuance to Regulation 19(2) of the Karnataka State Road Transport Corporation Employees Service Regulations, 1971. The impugned order was challenged in Reference No.24 of 2012 before the Labour Court, Bangalore. On issuance of notice, the petitioner-respondent before the Labour Court appeared and filed written statement and submitted that the charges were proved and the respondent was given fullest opportunity and he has not highlighted any irregularity in the proceedings and hence it is submitted to dismiss the application filed. The Labour Court, by its order dated 8th January 2014 passed orders under Section 10(1)(c)(d) of the Industrial Disputes Act, allowing the reference and set aside the dismissal order dated 28th October 2010. Further the petitioner herein was directed to reinstate the respondent first party into service within one month from the date of the order with full back-wages from the date of dismissal order till reinstatement and with consequential benefits. The order dated 08th January 2014 passed by the Labour is impugned in this petition and the prayer is to aside the said award.

(2.) The grounds taken by the learned counsel appearing for the petitioner is that the award passed by the Labour Court is an error of law and fact and the same is liable to set aside. The reasons assigned by the Labour Court on the ground that the dismissal of the first party from service is in contravention of Section 33(2)(b) of the Act. It is further held that obtaining prior approval under the said provision is mandatory and in support of its reasons, the Labour Court referred the judgment of the Hon'ble Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMO VIKAS BANK LTD. v. RAM GOPAL SHARMA AND OTHERS, (2002) 1 LLJ 834 and observed that dismissing a person without compliance of Section 33(2)(b) of the Act is arbitrary. The Labour Court also referred to the judgment of this Court in Writ Petition No.36412 of 2011 disposed of on 24th November 2011 in the case of V. SELVARAJU v. THE DIVISIONAL CONTROLLER, KSRTC, KOLAR. The grounds urged by the petitioner is that obtaining permission under Section 33(2)(b) of the Act is not correct unless it is connected with dispute pending between the employer and employee. It is submitted that there was dispute pending in a charter of demands and the respondent was dismissed not on the fact attributing to the pendency of the dispute; but, it is for the specific case that the workman was unauthorisedly absent for considerable length and despite sending notice, the workman has not turned-up. Thereafter, charge sheet was issued and for that also the workman has not responded. Hence, after due enquiry the charges leveled against the respondent workman was held proved. Under the circumstance, taking prior permission under Section 33(2)(b) of the Act is not applicable. Accordingly the order passed by the Labour Court setting aside the dismissal order is arbitrary and in contravention of provisions of the Act. The learned counsel has also referred to the judgment of this Court in Writ Petition No.50334 of 2013 between DIVISIONAL CONTROLLER, NEKRTC, BIJAPUR v. HEMARADDI disposed of on 06th February 2014 wherein it is held that merely allowing the reference by the Labour Court for noncompliance of Section 33(2)(b) is non-est. If the application made by the employee questioning the punishment of dismissal or discharge, then it is to be examined as to whether the punishment order is justifiable or in contravention of any other provisions. Unless the same has not been gone into and examined, mere setting aside the dismissal order for noncompliance of Section 33(2)(b) of the Act and directing the management to reinstate the workman and to pay back-wages and other consequential benefits is an error. The learned counsel also referred the judgment of the Hon'ble Supreme Court in the case of MANAGING DIRECTOR, NEKRTC, KARNATAKA v. SHIVASHARANAPPA in Civil Appeal No.(S) 9956 of 2017 disposed of on 01st August 2017 wherein it is held that merely interfering with the punishment imposed without adjudicating the validity of the dismissal is a non-est and it is submitted that whether the case of the respondent falls under Section 33(2)(b) of the Act or not shall be examined and further dismissal could be justifiable in the light of the charge or imputation of charges has to be gone into.

(3.) The learned counsel for the respondent submits to dismiss the petition. He submits that when undisputedly the dispute is pending on the file of the Labour Court in ID No.148 of 2005 in which the respondent is a member of the Union and the during pendency of the said dispute, no punitive action should be taken without prior permission under Section 33(2)(b) of the Act. He also submits that the petitioner has committed a grave error in filing such application and dismissing the petition on the face of it is arbitrary and contravention of Section 33(2)(b) of the Act. In support of his submissions, he referred to the judgment of this Court in Writ Petition No.33847 of 2011 and connected petitions disposed of on 23rd February 2012; and another judgment in Writ Petition No.36412 of 2011 disposed of on 24th November 2011 and submitted that in similar circumstances this Court held that prior permission under Section 33(2)(b) of the Act is mandatory.