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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
Sri. B. S. Suresh, S/o. Sri B. V. Subba Rao - Petitioner
Versus
The Chief Mechanical Engineer And Appellate Authority KSRTC, Central Offices and Anr. – Respondents
W.P. No.31160 Of 2013 (L-KSRTC) C/W W.P. No.19776 Of 2013 (L-KSRTC)
Decided On : 07-02-2023
Industrial Disputes Act, 1947 - Section 10 (4-A), 33 A, (2), (2 B) - Reinstatement of workman - Right to appointment - Direction quashing Award passed by Labour Court to extent Petitioner is aggrieved - Whether order passed by Labour Court in Complaint is proper and correct or does it suffer from illegality or infirmity – Workman being a default, he cannot take advantage of his own defaults and/or wrongs - Para 20.2.
Finding of the Court:
Labour Court could not have entertained Complaint since, by that time, statutory appeal had already been disposed and allegations made in complaint being that order of forfeiture which had been passed on account of workman not reporting to work in compliance of call notice workman had forfeited right for reinstatement granted in statutory appeal and could not have been considered since it is workman who had defaulted in reporting to work - Once order in statutory appeal had been passed, it was for workman to have reported to duty by himself, which he did not do - Employer also issued a call notice calling upon workman to report work, despite which, workman did not report to work - Thus, Court is of considered opinion that workman is at fault, which has not been considered by Labour Court in a proper perspective in Complaint dispute itself having been resolved by order passed in statutory appeal, rigor of Section 33 (2)(b) of I.D.Act and proviso thereof not being applicable, Complaint ought to have been dismissed.
Result: W.P dismissed.
ORDER :
1. In W.P.No.31160/2013, the workman is before this Court seeking for the following reliefs:
2. ISSUE A WRIT OF MANDAMUS or any other appropriate writ, or direction directing the Respondents to extend all consequential benefits such as, full back wages, leave encashment, provident fund benefit, periodical pay fixation, etc., with effect from 18.10.1993 till the date of retirement along with interest at 12%.
3. GRANT SUCH OTHER RELIEF or reliefs as deemed necessary to meet the ends of justice."
2. In W.P.No.19776/2013, the Employer-Road Transport Corporation (RTC) is before this Court seeking for the following reliefs:
2. Such other writ, direction or order that this Hon'ble Court deem just and expedient in the circumstances of the case."
3. The workman was employed as a driver with the Road Transport Corporation. On 8.10.1993, he was relieved from the post at Divisional Office, Traffic Section and was transferred to City I Depot, Mysore. Since the workman did not report to the said Depot, Depot Manager submitted a report on 06.12.1993 informing that the workman has not reported for duty.
4. On 11.12.1993, a call notice was issued directing the workman to report for duty and since he had not reported for duty, on 3.1.1994, Disciplinary Authority issued Articles of Charge alleging unauthorized absence from 08.10.1993. An enquiry was instituted, an Enquiry Officer was appointed who conducted the enquiry, wherein the workman participated. The Enquiry Officer submitted his report that the charges are proved.
5. The Disciplinary Authority accepted the findings and issued the second show cause notice, since reply there to was not acceptable, Disciplinary Authority dismissed the respondent from service on 22.6.1994.
6. Aggrieved by the said dismissal, the workman filed an appeal on 20.07.1994 before the Appellate Authority. Simultaneously, the workman also filed a claim petition under Section 10 (4-A) of I.D. Act, on 25.7.1994 before the Industrial Tribunal, Mysore, which came to be numbered as IID 71/1994.
7. While IID 71/1994 was pending, the Appellate Authority, vide its order dated 04.04.1995 allowed the appeal filed by the workman in part by directing the reinstatement of the workman without back wages from the date of relieving of the workman till he reports for duty, it was further held that the period of absence for the aforesaid period would be treated as on leave to the credit of the workman and the remaining period was treated as not on duty that the same would be considered for financial benefits.
8. In pursuance of the order dated 04.04.1995 of the Appellate Authority, the Road Transport Corporation issued a call notice to the workman on 15.04.1995 which was received by the workman. Despite the receipt thereof the workman not having reported to duty, on 18.2.1998 the Disciplinary Authority forfeited the right to appointment granted by the Appellate Authority on 04.04.1995.
9. A complaint came to be filed by the workman in Complaint No.25/2004 alleging contravention of Section 33 A of the I.D. Act. While the said complaint was pending, the Labour Court rejected the Claim petition filed under Section 10(4-A) of the I.D. Act, vide its order dated 30.10.2007 by holding that the order under challenge before it had merged with the order dated 4.4.1995 passed by the Appellate Authority and that there is nothing more which survives for consideration.
10. It is thereafter, the complaint was taken up for consideration and the Labour Court vide its order dated 05.03.2012
Section 33 (2) of I.D. Act reads as conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
Section 33(C)(1) of I.D.Act deals with situation where money is due to a workman under a settlement or an award.
The workman can invoke Section 33A of the I.D. Act only if there is a pending industrial dispute between the parties.
The main legal point established in the judgment is that the Labour Court has the jurisdiction to entertain a recovery application under Section 33(C)(2) of the Industrial Disputes Act when the claim....
The main legal point established in the judgment is the independence of the proceedings under Section 10, 10(4-A), and 33(2)(b) of the Industrial Disputes Act, and the inapplicability of the principl....
Section 33C(2) is more comprehensive than Section 33C(1). Section 33C(2) applies not only to cases of settlement or award or cases under Chapter VA of the Act, but to other cases as well. By a proces....
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