KARNATAKA STATE ROAD TRANSPORT CORPORATION MYSORE RURAL DIVISION v. K BHADRI RAMU

( BY SRI. A.V.SRINIVAS, ADV. FOR R-1; 2 SRI. JAGADEESH MUNDARAGI, AGA FOR R-2 ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DT.12.8.2006 PASSED BY THE LABOUR COURT, MYSORE IN IID.NO.177/02 AND COMPLAINT NO.5/06(ANN-O) ETC., THIS PETITION IS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioner – K.S.R.T.C. has called in question the award passed by the Labour Court, Mysore, in I.I.D.No.177/2002 dated 12.8.2006.

2. Brief facts as unfolded by the petitioner reveals that, the workman – respondent No.1 along with eight others had participated in a snap-strike. In view of the same, an enquiry was initiated against respondent No.1 and others charging illegally and unauthorisedly participating in a strike. By charge memo dated 7.8.1998, the Disciplinary Authority considering the enquiry report found that, the charges alleged against the respondent No.1 are proved and passed an order of dismissal dated 27.4.2002. However, first respondent invoking the Regulation 35 of the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, sought for review of the order of dismissal. It is in pursuance of the same, a show cause notice was issued by the Reviewing Authority to the respondent No.1 to 3 show cause why an order of dismissal should not be confirmed. The respondent No.1 submitted his reply dated 16.11.2002. The Reviewing Authroity considering the reply given by the respondent No.1, reviewed the order of dismissal and imposed a minor punishment of withholding of one increment for a period of one year. In the meanwhile, the respondent No.1 raised a dispute under Section 10(4-A) of the Industrial Disputes Act (for brevity 'the Act') before the Labour Court in I.I.D.No.177/2002.

3. The main contention before the Labour Court was that the Reviewing Authority of the Corporation has passed an order while the industrial dispute was pending before the Labour Court, as such, it is violative of the provisions of Section 33 sub-section (1) clause (a) of the Act and thus, the order of review and the dismissal are liable to be set aside.

4. The Labour Court by the impugned award dated 12th August 2006 held that the order passed by the Reviewing Authority on 28.6.2003 being in contravention of Section 33 sub-section (1) clause (a) of the Act is not sustainable and accordingly, it set aside the order of dismissal and order of review passed by the Reviewing Authority and directed the Corporation to reinstate the respondent No.1 with full backwages from the date of dismissal till the date of actual physical reinstatement into service. Corporation was 4 also directed to pay cost of Rs.5,000/-. It is against the said award, Corporation has filed this writ petition.

5. Learned Counsel appearing for the petitioner – Corporation submitted that, the Disciplinary Authority by order dated 7.2.2002 had dismissed the respondent No.1. As against the dismissal, the respondent No.1 by his representation dated 22.5.2002 had sought for review of the order of dismissal by invoking the Regulation 35 of the Regulations referred to above and it is in pursuance of the same, a show cause notice was issued and based on the reply given by the respondent No.1, by order dated

28.6.2003 the Corporation had modified the order of dismissal into a minor punishment of withholding of one increment for a period of one year. The review was sought for by the respondent No.1 himself and the said representation was filed on 22.5.2002 much before he could initiate the dispute. Respondent No.1 having sought for review could not have approached the Labour court by raising a dispute against the order of dismissal, as he himself has sought for review of the said order.

6. In pursuance of the order of reinstatement, the first respondent was transferred, since he was not reported to the duty at the place where he was transferred, two call letters were sent, one on 23.7.2003 and second one on 5

12.8.2003. Thereafter on 25.8.2003, the respondent No.1 on his own reported to the duty. Having accepted the transfer order, reported to duty, by suppressing this material before the Labour Court in his claim petition, which was filed after the review petition was filed, had raised a dispute, as such, the provisions of Section 33 sub-section (1) clause (a) of the Act are not attracted, as there is nothing, which prejudiced the workman concerned by alteration of conditions of service, it is only in case the service conditions of the workman are affected or prejudicial on account of passing of an order altering the conditions of service of a workman during the pendency of the proceedings either before the Labour Court or the Conciliation, as contemplated under Section 33(1)(a) of the Act. In identical circumstances, out of nine persons, who were charged with illegally participating in a strike one Shesha had raised a dispute before the Labour Court and the Labour Court had passed an award on12.8.2006 in I.I.D.No.176/2002, as against which, the Corporation had filed a Writ Petition in No.15125/2006. This Court considering the rival contentions has passed an order, setting aside the award holding that the provisions of Section 33(1)(a) of the Act are not attracted to the case of the petitioner therein. Said order was confirmed by the Division Bench in Writ Appeal No.1034/2007 dated 5th November 2007. Further, the workman in the said case had filed a S.L.P.(Civil) Nos.7851- 6 7852/2009. The Apex Court though has modified the order of punishment, but as far as findings of this Court that the provisions of Section 33(1)(a) of the Act are not applicable, has not been disturbed and it had been confirmed. As such, this case arising under the similar circumstances and in this case, the respondent No.1 had given a representation and also undertaking and had sought for similar benefit, though had not approached the Court on par with one John D'Souza. In respect of the respondent No.1 and another Shesha, a suomotu review was initiated under Regulation 35 based on their representation. Having availed all the benefits and having got the order of modifying the dismissal into minor punishment, suppressing this fact before the Labour Court in his claim petition, respondent sought for setting aside the order of dismissal on the ground that, the modification of dismissal order by the reviewing authority being violative of Section 33(1)(a) of the Act.

7. On the other hand, learned Counsel appearing for respondent No.1 – workman submitted that, no doubt, the respondent No.1 had made a representation to review his order of dismissal, however, from the date of dismissal, the respondent was required to make an application for raising a dispute within six months under Section 10(4-A) of the Act. He raised a dispute before the Labour Court. Once the Labour Court is ceased of the 7 matter, the reviewing authority had no jurisdiction to revise the order of dismissal, as it tantamounts to interfering with the proceedings before the Labour Court and it amounts to contempt of Labour court. He also submitted that, the matter was pending for adjudication before the Labour Court. No other authority has power to alter the service conditions of a workman during the pendency of the proceedings. It is in these circumstances, the Labour Court rightly has invoked the provisions of Section 33(1)(a) of the Act and has passed an order.

8. Facts, which are not in dispute are that, the first respondent against whom an enquiry was initiated ended up in the order of dismissal passed by the Disciplinary Authority and it is also not in dispute that the respondent No.1 made an application for review of the order of dismissal on 22.5.2002 much before he had raised a dispute before the Labour Court. However, knowing fully well that he had filed a review application, suppressing the same, he raised a dispute before the Labour Court and during the pendency of the proceedings, he had sought for benefit in pursuance of the review before the reviewing authority. The reviewing authority did consider his representation, placed him on par with other similarly placed workman against whom charges are framed, but reviewed the order of dismissal passed 8 by the Disciplinary Authority and imposed minor punishment of withholding of one increment for a period of one year. This Court in identical circumstances in W.P.No.15125/2006 in respect of another employee after considering the rival contention has held as under: “26. As observed by me earlier, that it is a case where the workman having been participated and having not disclosed the dispute and having availed the benefit of the order of the Corporation, now cannot turn around and say the proceedings are vitiated. A litigant is bound to disclose the document and the relevant material, withholding of the said material, amount to a fraud on the proceedings. In this case, if really, the respondent was alleging that the whole proceeding initiated by the Corporation are vitiated, he would not have submitted his explanation calling upon the Corporation to review the order, without even stating about the pending dispute, this amounts to withholding material information to suit his benefit.” As against the same, another employee had approached the Division Bench of this Court in Writ Appeal No.1034/2007. The Division Bench by order dated 5th November 2007 dismissed the appeal by observing as under: “3. considering the fact that, there was no scope for filing application under Section 33-A, as the appellant himself had accepted the order of the management to reinstate him, the learned single Judge has held that there is neither alteration of conditions of service nor is there any prejudice caused to the appellant. It is this order which is impugned before us. From the records produced, especially Annexure-L, the representation of the appellant himself indicate that infact, he had accepted the order of reinstatement with minor punishment and as we can see, the entire grievance was about the subsequent order of the Management transferring him 9 from Mysore to Bijapur, which is impugned. Considering these aspects, in the light of the various pronouncements referred to in paragraph 22 and 25 of the impugned order, the learned single judge was of the opinion that the impugned order of the Labour Court requires reconsideration. Accordingly he has quashed the award.

4. As we have noted the appellant had no grievance about the order passed by the Management to reinstate him with minor punishment as is clear from Annexure-L, his own representation and as such, now it is not open for him to raise technical objections, especially when he had in fact accepted the order of the Management. Hence in our view, there is no question of invoking the provision of Section 33-A of the Industrial Dispurts Act as there is no contravention of the same and the learned single Judge has rightly held so. We do not see any merit in the argument. Hence, the appeal is rejected. Further, as against the order of the Division Bench, S.L.P. Was filed before the Apex Court in S.L.P.(Civil) Nos.7851-7852/2009. Both S.L.Ps. were disposed of by the Apex Court on 13.9.2010, modifying the order of punishment as under: “On the facts of the case, we are of the opinion that the appellant before us should be permitted to continue service in Mysore till such time the respondent Corporation at any future stage considers it necessary to transfer him to any other District in the interest of administration. We further direct that the appellant shall be given 50% back wages from the date of his dismissal from service till the date of reinstatement and 50% of all other benefits. Reinstatement of the appellant shall take place within a period of two months from today. The appellant will be given continuity of 10 service. The The appeals are disposed of accordingly. impugned judgments of the High Court are modified to the extent stated above. No costs.”

9. However, the Apex Court did not interfere with the findings that the proceedings are not vitiated under the provisions of Section 33(1)(a) of the Act.

10. Section 33 sub-section (1) clause (a) of the Act prevents the employer during the pendency of any conciliation proceeding before a conciliation officer or a Board or any proceeding before an arbitrator or a Labour Court or a Tribunal or National Tribunal in respect of an industrial dispute as regard to any matter connected with the dispute, alter, to the prejudice of the workman concerned in such dispute. No doubt, this provision prevents the employer from altering the service conditions during the pendency of the proceeding before any of the authority referred to above. But in this case, it is not that the Disciplinary Authority on its own sought to review its order of dismissal or pass a dismissal order. The review proceeding were admittedly initiated at the behest of the workman, who sought for review of the order of dismissal, invoking the Regulation 35 of the 11 Regulations referred to above. It is in pursuance of the said representation, the reviewing authority had passed an order. The workman does not stop there, he accepts the same, and was reinstated and continues in service, simultaneously, he keeps his dispute pending. This is nothing but the workman sought to take advantage of the order of reviewing authority to get the order of dismissal modified, at the same time, he wants to continue the proceedings before the Labour Court, to enable him to raise the ground under Section 33(1)(a) of the Act.

11. Further, when the dispute was raised, the review application was pending, the same is not disclosed in the claim petition filed before the Labour Court. Further, when the proceedings were pending before the Labour Court, the status of the petitioner was, that of dismissed workman. The order in review is modifying the order of dismissal, hence, the application for review and the order passed on the same does not amount to altering the service condition of the respondent.

12. Further, the order passed on the review application does not amount to alteration of service conditions prejudicial to the workman. His status was changed from 'dismissed employee' to reduction of one increment for one year. Hence, it is not prejudicial. 12 Accordingly, the petition is allowed. The award passed by the Labour Court, Mysore, in I.I.D.No.177/2002 dated 12.8.2006, is hereby set aside. Sd/- JUDGE KNM/-