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Case Title: The Divisional Controller (South) v. Sri. Vasant B. Jogi 

Case No.: WRIT PETITION NO. 105424 OF 2023  

Dated: April 15, 2024 

Quorum: Justice Shivashankar Amarannavar  

 

FACTS OF THE CASE: 

The facts of the case include that the respondent, a driver for the petitioner corporation, was absent from work without permission from his superiors or submission of a leave request beginning on June 1, 2007.  

On the report of the depot manager dated June 22, 2007, a call notice dated September 17, 2007, was issued to the respondent directing him to report for duty. The respondent neither replied to the said notice nor reported to duty, and therefore, an Article of Charges dated April 24, 2008, was issued to him along with a statement of imputation. 

Respondent failed to submit his reply after receiving the Article of Charges; as a result, the disciplinary authority designated a Presenting Officer and an Enquiry Officer to conduct a domestic investigation into the respondent’s absence without authorization. 

By way of paper publication in the daily news paper “Vijaya Karnataka,” the enquiry notice was sent to the subject. After conducting research, the enquiry officer filed a report on their findings.  

The respondent received a show cause notice, but he declined to react. The respondent has been removed from the Corporation’s service by the disciplinary authority through its order of August 21, 2008.  

In accordance with Industrial Dispute Act of 1947, Section 33-A, the respondent filed a complaint. The Corporation, the petitioner, filed a statement of objections after showing up in response to the notification. The said complaint was partially accepted by the Industrial Tribunal after it heard the testimony of both sides. 

The respondent filed a complaint in line with the Industrial Dispute Act of 1947, Section 33-A. Following its appearance in response to the notification, the corporation, the petitioner, filed a statement of objections. The Industrial Tribunal heard testimony from both parties and partially accepted the aforementioned complaint. 

It also overturned the dismissal judgement dated August 21, 2008, which went into effect on March 28, 2014, and ordered the petitioner-Corporation to reinstate the respondent in his initial position with continuity of service with effect from March 28, 2014, on the grounds that the petitioner-Corporation has not received the necessary consent under Section 33(2)(b) of the Industrial Dispute Act.  

In this writ case, the petitioner-Corporation has questioned the aforementioned Industrial Tribunal ruling. 

CONTENTIONS OF THE PETITIONER: 

The petitioner’s learned counsel would argue that the worker who was fired remained silent for a full six years following the order of termination. Three years from the date of discharge, dismissal, or retrenchment is the statute of limitations for bringing a claim under Section 2-A(3). 

He further argued that in accordance with Section 33-A(b), the complaint filed under Section 33-A must be decided as though it were a dispute that was referred to or pending before it in accordance with the provisions of the ID Act. As a result, he claimed, the limitation contained in Section 2-A(3) of the ID Act applies and the complaint has passed the three-year statute of limitations.  

The petitioner also argued that the Tribunal’s decision to dismiss the case was deemed non-est because it failed to comply with Section 33(2)(b) and allowed the complaint through the challenged order without considering the merits of the respondent’s conduct or the charges against it.  

Lastly, it was argued that the tribunal must consider the legitimacy of the dismissal. The complaint has only been accepted by the tribunal on the grounds that Section 33(2)(b) of the Act was not followed, without taking into account the validity of the dismissal on its own merits.  

 

CONTENTIONS OF THE RESPONDENT: 

The counsel for the respondent argues that the tribunal must consider the validity of the dismissal and is relying on the ruling in a previous case. In an earlier case reported in AIR 2002 Supreme Court 643, learned counsel for the respondent would argue that the Constitution Bench of the Hon’ble Supreme Court of India concluded that failing to file an application under Section 33(2)(b) seeking an obvious instance of violating Section 33(2)(b) requirements, and the dismissal order is rendered null and invalid.  

The respondent further argues that since the Hon’ble Apex Court has not addressed the case cited by the petitioner, the decision made in this case will be interpreted per-incuriam, as a prior ruling by the Constitution Bench will address the case that has not been cited. 

Furthermore, the respondent argues that since the Hon’ble Apex Court has not addressed the case cited by the petitioner, the decision made in this case will be interpreted per-incuriam, as a prior ruling by the Constitution Bench will address the case in question before it has not been referred to. 

The respondent further asserts that the decision in this case will be interpreted per-incuriam, which means that the Constitution Bench’s earlier decision would handle the issue in question before it has not been referred to, because the Hon’ble Apex Court has not addressed the case that the petitioner stated.  

 

LEGAL PROVISION:  

• Section 33-A of Industrial Dispute Act, 1947: Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings. In cases where an employer violates section 33 while the matter is pending [before a Labour Court, Tribunal, National Tribunal, Board, or Conciliation Officer] 
• Section 33(2)(b) of Industrial Dispute Act. While a disagreement is pending, an employer has the authority to fire or dismiss employees who are engaged in an industrial dispute for any misbehaviour unrelated to the conflict. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The court reviewed the information on file after hearing from the parties’ knowledgeable counsel. The court observed that the primary point that needed to be addressed was whether the petitioner-Corporation would have to comply with Section 33(2)(b) of the Act before issuing the order of dismissal, in which case the order would be null and void. 

The Division Bench of the Hon’ble Apex Court has deliberated and made a distinction in its ruling. After taking into account and separating the ruling of the Honourable Apex Court, the court determined that the worker’s dismissal order would be invalid due to the worker’s violation of Section 33(2)(b) of the Act. 

The court determined that a dispute involving a single worker qualified as an industrial dispute. Any dispute or disagreement between a worker and his employer related to, or arising out of, such discharge, dismissal, retrenchment, or termination shall be deemed to be an industrial dispute even in cases where no other worker or worker union is a party to the dispute. This is the case when an employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual worker. 

Following 45 days from the date of his application to the appropriate Government’s conciliation officer for the conciliation of the dispute, the court made a direct application to the Labour Court or Tribunal for adjudication of the dispute referred to therein.  

Upon receipt of this application, the Labour Court or Tribunal will have the authority and jurisdiction to decide the dispute as though it were one referred to it by the appropriate Government in accordance with the provisions of this Act. All of the provisions of this Act will apply to this adjudication in the same manner as they do to an industrial dispute referred to it by the appropriate Government. 

 

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Judgment reviewed by Riddhi S Bhora. 

 

Click to view judgment.