Divisional Controller of KSRTC vs Sri. H.M. Siddarameshwara

Ram Mohan Reddy, J.—Having heard the learned counsel for the petitioner-corporation, perused the pleadings and examined the award impugned there can be no more doubt that the award impugned calls for interference for the following two reasons:

i) The Industrial Tribunal, Hubli in I.D. 235/2009, in the premise of pleadings of parties framed issue No. 2 thus:

ii) Whether the workman is not entitled to the relief in view of the delay in raising a dispute?

The dispute was in relation to the validity of an order dated 30.9.1987 imposing the punishment of reducing two annual increments permanently for proved misconduct which was referred for adjudication by the State Govt. in its order dated 25.4.2009 in exercise of jurisdiction u/s 10(1)(d) of the Industrial Disputes Act, 1947, for short ''ID Act''. In other words there was a delay of more than 22 years in calling in question the order dated 30.9.1987.

The Industrial Tribunal at paragraph 18 of the award stated that since the Supreme Court in Karan Singh Vs. Executive Engineer Haryana State Marketing Board, , held the delay will not invalidate the reference, and answered that issue in the negative, that the delay did not defeat the challenge to the order.

It is no doubt true that in Karan Singh''s case, the Apex Court having extracted the observations in:

i) National Engineering Industries Ltd. Vs. State of Rajasthan and Others, ;

ii) Sapan Kumar Pandit Vs. U.P. State Electricity Borad and Others, ;

iii) The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, ;

iv) S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, ;

as followed in Employers in relation to the Management of Sudamdih Colliery of Bharat Coking Coal Ltd. Vs. Their workmen represented by Rashtriya Colliery Mazdoor Sangh, and Chief Engineer, Ranjit Sagar Dam and Another Vs. Sham Lal, , concluded that so far delay in seeking the reference is concerned, no formula of universal application can be laid down and it would depend upon the facts of each individual case.

In Assistant Engineer, C.A.D., Kota Vs. Dhan Kunwar, , Their Lordships having noticed the observations in Nedungadi Bank''s case (supra) and S.M. Nilajkar''s case (supra), observed that the delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. In Sapan Kumar Pandit''s case. (supra), the Apex Court observed thus:

There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanised by the workmen or the union on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government has chosen to refer the dispute for adjudication u/s 4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.

In the case on hand, it is seen that the respondent-workman did not even lay a plausible explanation for the cause of the delay of 22 long years, though filed a claim statement. The order imposing punishment of withholding increments is dated 30.9.1987, while the order of reference is dated 25.04.2009. In the light of these facts, it is crystal clear that, there was no live dispute as held in Sapan Kumar Pandit''s case (supra). In that view of the matter, the finding of the Industrial Tribunal at paragraph-18 of the award impugned over the issue relating to delay, is unsustainable and perverse.

Even on merits, the Industrial Tribunal before whom the petitioner-Corporation, for the first time, placed relevant material constituting substantial legal evidence over the allegation of misconduct, accepted the same and held the misconduct proved.

In that view of the matter, the Industrial Tribunal was not justified in recording its findings in the negative over issue No. 2 calling for interference. In fact the challenge to the order dated 30.9.1987 much after expiry of 22 years, was not a live dispute in the sense that there did not "exist" an industrial dispute in the year 2009 for adjudication.

The other legal ground upon which the award of the Industrial Tribunal calls for interference is that the misconduct alleged when established and accepted by the Industrial Tribunal on the premise that the material on record is sufficient to prove the charge against the workman, the punishment not being one of dismissal or termination from service, the Industrial Tribunal had no jurisdiction to invoke Section 11-A of the Act to interfere with the order of punishment and reduce the punishment to one of withholding one increment of the year 1997 without cumulative effect and without effecting future increments of the workman, in the light of Section 11-A of the Act and the decision of the Apex Court in The General Secretary, South Indian Cashew Factories Workers'' Union Vs. The Managing Director, Kerala State Cashew Development Corporation Ltd. and Others, , more appropriately the following observation:

16...Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the section itself xxx

In the result, this petition is allowed. The award impugned insofar as it relates to interference with the order dated 30.9.1987 to modify the punishment from withholding two annual increments of the workman with cumulative effect and modifying the same to one of withholding one increment for the year 1987 without cumulative effect, is quashed. So also the finding on the issue No. 2 over delay in raising the industrial dispute is answered in the affirmative and the reference stands rejected.