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Judgment
Subhash B. Adi, J.—This writ petition is directed against the award dated 12.8.2006 passed in I.I.D. No. 176/2002 on the file of Labour
Court, Mysore and Complaint No. 4/2006.
The first respondent was working as a driver in the petitioners-Corporation. He was terminated from service by order dated 7.2.2002 and in
this regard on 23.5.2002 as per Annexure ''C'', the respondent-workman had made a representation. Interalia, stating that, the enquiry officer has
pointed out that, the irregularity and illegality has been committed by the officers of the Corporation and the officers in order to hide the irregularity
and illegality, they have rejected the enquiry officer''s report and have discriminated the similarly placed employees in the matter imposing
punishment and in this regard, the respondent called upon the Corporation to invoke the provision of Regulation 35 of the Karnataka State Road
Transport corporation Servants (Conduct & Discipline) Regulation, 1971 (hereinafter called as ""Regulations"" for short). Thereafter, the first
respondent raised a dispute u/s 10(4-A) of the I.D. Act. Interalia, questioning the order of dismissal dated 7.2.2002. The Labour Court issued the
notice to the petitioners-Corporation, and as per the order sheet dated 28.10.2002, the notice of the Labour Court was served. On 25.10.2002,
show cause notice was issued to the respondent by the Corporation to show cause, as to why an order of punishment passed by the disciplinary
authority should not be modified? In response to the said show cause notice, the respondent-workman gave his explanation on 16.11.2002,
intaralia, reiterating the irregularity and illegality committed by the officers of the Corporation in the matter of imposing punishment in respect of 58
employees of the Corporation and alleged that, the said order of punishment requires to be reviewed by the authorities in exercise of power under
Regulation 35 of the Regulations.
On 28.6.2003, the Corporation passed an order invoking Regulation 35 of the Regulations by setting aside the order of termination dated
7.2.2002 and imposing punishment of withholding one increment for a period of one year under the Regulation 18(A)(iii). In pursuance of the said
order, the Corporation directed the respondent to report to the duty from the date of receipt of the order i.e., 14.7.2003 and on 22.7.2003,
corporation transfer the services of the respondent from Mysore to Bijapur and on 22.7.2003, the Corporation informed the respondent to report
to the duty along with necessary documents mentioned therein. In the meanwhile, a memo was filed before the Labour Court by the Corporation.
Interalia, stating that the order of dismissal has been recalled. The respondent also filed an application dated 25.2.2002, interalia, seeking
permission of the Labour court for his reinstatement. In pursuance of the order passed by the Corporation, the Labour Court directed the
Corporation to reinstate the respondent. During the pendency of the proceedings before the Labour court, the respondent was reinstated.
However, it is stated that he was transferred to Bijapur and he did not report.
In view of the order dated 28.6.2003 setting aside the order of dismissal and imposing minor penalty of withholding of one increment for a
period of one year, the respondent filed an application u/s 33-A of the I.D. Act, 1947 (hereinafter referred to as ''act''), alleging that, the
Corporation has violated the provisions of Section 33(1) of the I.D. Act by changing the service conditions of the workman. The said application
was registered as complaint No. 4/2006. The Labour Court on consideration of the application u/s 33-A, held that the Corporation has altered the
service conditions of the respondent by passing an order on 28.6.2003 and thereby set aside the order of dismissal dated 7.2.2002 and also the
punishment of minor penalty imposed by the Corporation on 28.6.2003 and further held that the respondent is entitled far reinstatement with full
backwages from the data of dismissal till the date of actual physical reinstatement in service of the Corporation in Mysore Division and for
continuity of service and also for consequential benefits. Further, Rs. 5,000/- cost was awarded towards the cost of litigation.
The learned Counsel for the petitioners submitted that the first respondent-workman himself made an application on 23.5.2002. Interalia, calling
upon the Corporation to invoke the provision of Regulation 35 of the Regulations, to review the punishment and in view of the said application and
also in view of the jurisdiction vested in the corporation under Regulation 35 a show cause notice was issued on 21.10.2002 and in pursuance of
the said show cause notice, the respondent-workman submitted his explanation specifically praying far reviewing of the order of punishment by
invoking the provisions of the Regulation 35 of the Regulations.
It is further submitted that when the show cause notice was issued, the notice from the Labour court was not issued to the corporation and
further the respondent, who was served with a show cause notice filed his explanation on 16.11.2002 and the respondent did not even referred to
the dispute pending on the file of the Labour Court and in pursuance to the explanation given by the respondent, the Corporation in the normal
course, withdrew the order of dismissal and has imposed minor penalty of withholding of one increment for a period of one year i.e., in consonance
with the claim made by the respondent in his explanation. It is further submitted that, the respondent, himself alleged that, there is a discrepancy in
the matter of imposing the punishment and this respondent, who alleged that, in similar cases, some of the employees were awarded, minor
punishment and in case of the three employees, the dismissal order has been passed. Taking this into consideration, Corporation in bonafide
exercise of its power, without causing any prejudice to the respondent and an par with the other employees and exercise of its power under
Regulation 35 of the Regulations, the order of dismissal passed against the respondent was set aside and a minor penalty was imposed.
The learned Counsel for the petitioners stated that, in pursuance of the said order, a memo was filed before the Labour Court and the
respondent, was permitted to join the duty. She also stated after the respondent reported to duty and was transferred to Bijapur and where he has
not report for the duty and he remained unauthorised absent. On account of remaining unauthorised absent, another enquiry was held against him
and in an enquiry, he was found guilty of misconduct and an order of dismissal has been passed by the disciplinary authority.
In the light of the dismissal order, it is submitted that, the workman is no more an employee of the Corporation. However, he was reinstated in
pursuance of the Interim Order passed by this Hon''ble Court on 23.11.2006. It is submitted by the learned Counsel for the petitioners that once
the workman is dismissed from service for subsequent mis-conduct, where no question of reinstatement of such workman. However, to comply
with the interim order of this Court, he was reinstated, however he has not reported to the duty and has again remained unauthorised absent.
On the question of the application u/s 33-A of the I.D. Act, the learned Counsel for the petitioners submitted that Section 33-A could be
invoked, only in case there is contravention of the provisions of Section 33 and not otherwise. The contravention of Section 33 must be prejudicial
to the workman and not otherwise and also it must be in respect of dispute, which is pending before the Industrial Tribunal or the Labour Court as
the case may be. She submitted that Section 33(1) is not applicable to the facts and circumstances of this case, as there is no contravention of the
said provision, prejudicing the case of the respondent. She also submitted that in view of the explanation given by the workman himself an in view
of his earlier applications, the Corporation invoking Regulation 35 for revoking the dismissal order, cannot be termed as prejudicial to the
workman. It is submitted that the workman himself having submitted to jurisdiction of the Corporation for invoking the provisions of Regulation 35
of the Regulations and having an order passed and later on making complaint, only because one increment was withhold, does not attract the
provisions of Section 33 and he is also estopped from contending to the contrary, as one hand he seeks the relief under Regulation 35 of the
regulations, and on the other hand he takes the benefit and when portion of the order affecting him, he makes the complaint.
Sri. S.V. Shastri, learned Counsel for the first respondent submitted that the dispute as regards to the validity of the dismissal order passed on
7.2.2002 was admittedly pending before the Labour Court, and the notice was issued by the Labour Court to the Corporation and as per the
order sheet of the Labour Court by 28.10.2002, notice was served on the corporation that means on the date of issue of show cause notice i.e.,
on 25.10.2002, the Corporation was aware, that the dispute was pending before the Labour Court against the order of dismissal, when the dispute
is pending before the Labour Court in respect of the dismissal of the workman, the Corporation, invoking the provision of Regulation 35 of the
Regulations and modifying the order of punishment, amounts to contravention of the provisions of Section 33(1) of the I.D. Act, as it alters the
service conditions of workman. He also submitted that any order passed in violation of Section 33 of the I.D. Act is void in law and the Labour
Court was justified in setting aside the order of dismissal dated 7.2.2002 and also the order dated 26.6.2003 and further the Labour Court was
justified in directing reinstatement with full backwages and consequential benefits. He further submitted that, though the explanation was given by
the respondent, it does not mean that, the Corporation get jurisdiction to pass the order and further submitted that, such orders is nullity in law. He
also submitted after setting aside the dismissal order, the corporation has directed the respondent to report to duty on 23.7.2003 but whereas he
was transferred to Bijapur on 22.1.2004 itself. He further submitted that the Labour court considering this aspects of the matter has found that the
transfer is illegal and has directed the Corporation to reinstate the respondent at Mysore Division only.
The Learned Counsel for the first respondent has relied on the following Judgments reported in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.
Vs. Ram Gopal Sharma and Others, ; reported in The Management of Rane Brake Linings Ltd. Vs. The Presiding Officer, Industrial Tribunal and
C.C. Satheesh, and reported in Blue Star Employees Union Vs. Ex. Off. Principal Secy. To Government and Another,
Relying on these Judgments, the learned Counsel for the respondent submitted that once it is found that, the provisions of Section 33 of the
I.D. Act has been contravened, the provisions of Section 33-A get attracted. He mainly relied on paragraphs 3 and 4 of the Judgment reported in
2000 (67) FLR 509. He also relied on paragraphs 12 and 13 of the judgment reported in The Management of Rane Brake Linings Ltd. Vs. The
Presiding Officer, Industrial Tribunal and C.C. Satheesh,
It is the case of the learned Counsel for the respondent that, when the Labour Court has found that, there is violation of the provision of
Section 33, not only it is open to the Labour court to set aside of those orders, which are passed during the pendency of the proceedings and but
also the order impugned in the dispute and the Labour Court in consonance with the provisions of Section 33-A has passed the award.
As far as the facts of this case are concerned, there is not much dispute. The respondent was dismissed from service on 7.2.2002 is not in
dispute. The respondent filing an application on 23.5.2002 bringing to the notice of the Corporation regarding the discrepancy in the matter of
imposing the punishment and also the illegal acts alleged to have committed by some of the officials of the Corporation. It is also not disputed that,
the show cause notice was issued on 31.10.2002 and an explanation was filed by the respondent on 16.11.2002 and thereafter the Corporation
passed an order on 28.6.2003 getting aside the order of termination and imposing minor penalty. What is alleged in this case is the proceedings
initiated by the Corporation under Regulation 35, amounts to violating of the provisions of Section 33 of the I.D. Act.
In this context the only question that arises for consideration is as follows:
Whether the action of the Corporation amounts to violation of the provisions of Sections 33 or not?
In order to invoke the provisions of Section 33-A there has to be a contravention of Section 33(1)(a) & (b), which reads as follows:
Conditions of service, etc., to remain unchanged under certain circumstance during pendency of proceedings
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board of any proceeding before [an arbitrator or] a
Labour Court of Tribunal or National Tribunal in respect of an Industrial dispute, no employer shall-
(a) In regard to any matter connected with the dispute, alter, to the prejudice of the workman concerned in such dispute, the conditions of service
application to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such
dispute.
save with the express permission in writing of the authority before which the proceeding is pending.
In this case, what is complained before the Labour Court is the Violation of Section 33(i)(a) i.e., during the pendency of the proceedings
before that Labour Court in respect of industrial Dispute, the employer in respect of the matter connected with the dispute cannot alter to the
prejudice of the workman concerned, or the conditions of service applicable to the workman immediately before the commencement of such
proceedings.
In this case undisputedly before the commencement of the proceedings, the statue of the workman was, that of a dismissed employee and the
order of dismissal was in question before the Labour Court. The next question that arises for consideration is, as to whether invoking of Regulation
35 of the Regulations for reviewing the punishment would amounts to the alteration of conditions of service existed before the proceeding. The
corporation has invoked the provisions of Regulation 35, and held that the order of dismissal is illegal and has imposed minor penalty, whether this
amounts to violation of Section 33 of the I.D. Act.
In this regard, it is noticed that, even before the dispute is raised by the respondent, the respondent himself on 23.5.2002 made a
representation to the corporation, interalia, alleging that, there is a discrepancy in the matter of imposing the punishment against the employees and
the officers of the Corporation have committed illegality by passing the discriminatory orders of punishment. The dismissal order passed against the
respondent is required to be reviewed in exercise of power under Regulation 35 of the Regulations. In pursuance to the said representation and
also noticing the fact that, there is a discrepancy in the matter of imposing penalty, the Corporation issued show cause notice an 25.10.2003 and in
response to the said show cause notice undisputedly, the respondent submitted his explanation and admits the jurisdiction of the Corporation to
exercise power under Regulation 35 of the Regulations.
Now, the question is the Corporation having set aside the order of dismissal on the ground that, the dismissal order is discriminatory in nature
and there is a discrimination in the matter of imposing the punishment and corrects the order of punishment, whether it would prejudice the service
conditions of the respondent-workman. The respondent-workman has admitted that, he had filed his explanation, if the respondent-workman really
meant that, the Corporation no jurisdiction to invoke the provisions of Regulation 35 particularly during the pendency of the proceedings before the
Labour Court, respondent would not have given an application and would have taken an objection in his explanation filed on 16.11.2002, which is
admittedly after he raised his dispute, but it is clear from the explanation filed by the respondent on 16.11.2002, that the respondent not only has
not whispered about the pendency of the proceedings before the Labour Court despite himself having raised the dispute but has not even
mentioned about the pendency of the disputes and intern, in explanation he has reiterated that the order of punishment is illegal and it required to be
reviewed. If that is so, it does not now lie in the mouth of the respondent, to say that the review order has prejudiced, the workman.
Section 33 of the I.D. Act is applicable only when the conditions of service of the workman are sought to be altered during the pendency of
the dispute before the Industrial Dispute. In this case the order passed by the Corporation is with the active participation and at the instance of the
respondent and same cannot be called as prejudicial to the workman.
It is also required to be seen as to what is the order that is passed by the corporation on 28.6.2003. The order passed by the Corporation
dated 28.6.2003 is setting aside the order of dismissal and imposing of the minor penalty and this is one of the allegation made in the explanation
given by the respondent, wherein, he has alleged that in respect of 58 employees, there is a discrepancy in the matter of imposing the punishment
and also alleged the officials in order to hide their irregularities have passed the discriminatory orders of punishment and alleged that in some cases
minor penalty has been imposed and in some cases dismissal order is passed. If the Corporation acting in pursuance of the explanation has
corrected itself by setting aside the order of dismissal, in my view, it does not amount to prejudicial to the respondent.
The learned Counsel for the respondent has relied on two judgments Apex Court and another Madras High Court. The Judgment reported in
ILR 2000 (87) 509 in the matter of Blue Star Employees'' Union v. Ex. Off. Principal Secretary To Government and Anr., the Apex Court in the
said case, has categorically held in paras 3 and 4 that, in order to invoke the provisions of Section 33-A there has to be a contravention of Section
33 of the I.D. Act. In the said case, a dispute was referred to the Industrial Tribunal for adjudication, and during the pendency of the said dispute,
the management forced the workman to enter into the settlement, not doing so, the Management passed an order of termination of the services of
the workman and in that context, the Apex Court found that, the order of termination during the pendency of the dispute and forcing the workman
to enter into the settlement would prejudice the service conditions of the workman.
In this case, when a show cause notice was issued to the workman, he had already raised a dispute, the minimum that was required by the
workman was to disclose the pending dispute, pending before the Labour Court. He himself being the applicant before the Labour Court has not
even whispered about the pendency of the proceedings before the Labour Court and intern he not only he submits his explanation before the
Corporation, but claims that the order of punishment is required to be reviewed.
In these circumstance if the proceedings at the instance and with the active participation of the workman is held, same cannot be called as
proceedings prejudicial to the workman or amounts to alteration of service conditions of the workman. The another decision relied on by the
learned Counsel for the respondents reported in The Management of Rane Brake Linings Ltd. Vs. The Presiding Officer, Industrial Tribunal and
C.C. Satheesh, the Madras High Court has categorically held that the object of Section 33, is designed to protect the workmen concerned during
the course of industrial conciliation, arbitration and adjudication against the employer''s harassment and victimisation on account of their having
raised the industrial dispute or their continuing the ''pending proceedings''. This observations of the Madras High court clearly shows that during the
pendency of the proceedings, the status quo at which be was there on that day of dispute, should not be prejudiced in the proceedings. In this case
as on the date of dispute, the position of the workman was dismissed employee and during the pendency of the proceedings also the workman
rights are concerned was not affected, firstly because the order of dismissal has been set aside and the minor penalty has been imposed
inconsonance with the similarly placed employees, which fact has been disclosed by the workman himself. It is un-understandable as to how, the
service conditions get prejudiced by virtue of the said proceedings, which are initiated in which the workman has participated, in the light of the
provision of Section 33(i)(a), the violation of Section 33 can be alleged only if the proceedings prejudice workman concerned in respect of dispute
and that existed immediately before the commencement of the said proceedings.
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 proceeding. 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.
The Labour Court though having taken note of the fact that the workman had filed the explanation, but has failed to considered as the same in
as much as the Labour Court only on the ground that, the proceedings were pending before the Labour Court, when the Corporation has passed
the order, has passed the award.
In my considered view, the award of the Labour Court is devoid of merits. It is now brought to my notice that during the pendency of the
proceedings before the court, respondent has bean dismissed from service on the subsequent misconduct, if that is so, this matter does not requires
any further consideration.
For the above reasons, writ petition is allowed. The award dated 12.8.2006 passed in I.I.D. No. 176/2002 on the file of Labour Court,
Mysore and Complaint No. 4/2006 are quashed.