Dismissal Of Workman During Pendency Of Industrial Dispute Without Tribunal's Approval Is Void, Karnataka High Court Orders Reinstatement Of Workman

The Karnataka High Court single-judge bench of Justice Shivshankar Amarannavar held that when an industrial dispute is pending in an adjudicatory body, the employer must seek approval from the Tribunal for the dismissal of the worker, as mandated by Section 33(2)(b) of the Industrial Disputes Act. If any approval is not sought and granted, such dismissal would be deemed void.

Brief Facts:

The Respondent (“Workman”) was employed as a driver in the Petitioner-Corporation (“Management”). He was absent from duty without prior permission or leave application from June 1, 2007. Despite a call notice issued on September 17, 2007, directing him to report for duty, the Workman neither responded nor resumed work. Subsequently, an Article of Charges was issued against him, regarding his unauthorized absence, to which the Workman failed to reply. Consequently, a domestic enquiry was initiated, and the Workman was duly notified through a publication in 'Vijaya Karnataka' daily newspaper. Following the enquiry, the Workman was served a show cause notice, but he did not respond. Eventually, the disciplinary authority dismissed the Workman from service on August 21, 2008. Feeling aggrieved, the Workman filed a complaint under Section 33-A of the Industrial Dispute Act, 1947 (“ID Act”), seeking to set aside the dismissal order.

In response to the complaint, the Management appeared and filed a statement of objections, contesting the allegations. The Industrial Tribunal partially allowed the complaint, setting aside the dismissal order with effect from March 28, 2014. The Tribunal directed the Management to reinstate the Workman in his original post with continuity of service from the specified date, stating that there was a lack of approval under Section 33(2)(b) of the ID Act. Dissatisfied with the Tribunal's decision, the Management challenged it through a writ petition in the Karnataka High Court (“High Court”).

The Management argued that the Workman remained silent for six years following the dismissal order which in itself exceeded the three-year limitation period stipulated under Section 2-A(3) of the ID Act for raising a dispute. Additionally, it contended that the complaint made under Section 33-A should be subject to the same limitations as disputes under the ID Act, making the complaint time-barred. Furthermore, it argued that the Tribunal's decision focused solely on the procedural aspect regarding compliance with Section 33(2)(b) and failed to address the merits of the misconduct allegations against the Workman.

Section 33(2) of the ID Act:

“(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.”

Observations by the High Court:

The issue before the High Court was whether the Corporation's failure to adhere to the provisions of Section 33(2)(b) of the ID Act prior to issuing the dismissal order renders the said order void and non-est. The High Court noted that this issue was conclusively settled by the decision of the Constitution Bench of the Supreme Court in the Jaipur Zila Sahakari Bhoomi Vikas Bank Vs. Ram Gopal Sharma and Others [AIR 2002 Supreme Court 643], where the SC held that not making an application under Section 33(2)(b) for seeking approval of dismissal is a clear case of contravention of the provisions to the Section 33(2)(b) and dismissal order becomes inoperative or void. Further, the High Court noted that the decision in Divisional Controller, NEKRTC vs. Raghavendra, and held that mere non-compliance with Section 33(2)(b) does not warrant interference by the High Court if the charges against the employee have not been contested and if the Labour Court's findings have not been duly considered.

The High Court held that the Industrial Dispute No.148/2005, concerning the charter of Demands, was pending at the time of the Workman's dismissal. This dispute was raised by the KSRTC Staff and Workers Federation. Considering the pending nature of the Industrial Disputes, the Court held that the Management was obligated to seek approval from the Tribunal for the dismissal of the worker, as mandated by Section 33(2)(b) of the ID Act. However, the Corporation failed to obtain such approval. Therefore, the dismissal order of the Workman was void and non-est. Consequently, the High Court directed the Management to reinstate the workman into service.

Regarding the complaint filed by the Workman under Section 33-A of the ID Act, the High Court held that there is no specified limitation for filing such a complaint. It clarified that while Section 2-A(3) imposes a three-year limitation for making an application under Section 2-A(2), there's no limitation provided for raising an Industrial Dispute under Section 2-A(1). It held that the term "shall adjudicate upon the complaint as if it were a dispute referred to or pending before it" in Section 33-A(b) merely denotes the procedural protocol to be followed by the Tribunal/Labour Court and doesn't imply any limitation for referring a dispute.

Consequently, the High Court dismissed the writ petition filed by the Management.

Case Title: The Divisional Controller (South), N.W.K.R.T.C. vs Vasant B Jogi

Citation: 2024 LiveLaw (Kar) 200

Case Number: WP No. 105424 of 2023

Advocate for the Petitioner: SL Matti

Advocate for the Respondent: RH Angadi