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Hariba Vs. K.S.R.T.C. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. 37095 of 1982
Judge
Reported in1983(1)KarLJ261; (1983)IILLJ76Kant
ActsIndustrial Disputes Act, 1947 - Sections 2, 2A, 10, 10(1), 11A and 12
AppellantHariba
RespondentK.S.R.T.C.
Excerpt:
- karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 9: [anand byareddy, j]tender for establishing state-wide area network - constitution of tenders accepting authority multi-member committee (nsc) appointed for procurement entity discharging function to examine recommendations received from governments consultants received from governments consultants on implementation of state wide area network (kswan), to consider-recommendations of consultant on preparation of tender documents and detailed evaluation criterion in respect of same as well as to examine selection of bidder nsc also discharged function to recommend to government final bidder for network held, such committee shall be deemed to be tender accepting authority. appointment of technical.....order1. this writ petition is by an ex-conductor of the karnataka state road transport corporation ('corporation' for short). he has prayed for quashing the order made by the disciplinary authority and deputy general manager and divisional controller, gulbarga division, imposing the penalty of dismissal from service against him, which order is confirmed in appeal by the appellate authority. 2. this petition has come up for preliminary hearing after notice to the respondents. sri h. g. balakrishna, learned counsel for the corporation, contends that though the corporation is an authority falling within the definition of the word 'state' as defined under art. 12 of the constitution and therefore, certainly amenable to the writ jurisdiction of this court under art. 226, in a matter like this,.....
Judgment:
ORDER

1. This Writ Petition is by an Ex-Conductor of the Karnataka State Road Transport Corporation ('Corporation' for short). He has prayed for quashing the order made by the disciplinary authority and Deputy General Manager and Divisional Controller, Gulbarga Division, imposing the penalty of dismissal from service against him, which order is confirmed in appeal by the appellate authority.

2. This petition has come up for preliminary hearing after notice to the respondents. Sri H. G. Balakrishna, learned counsel for the Corporation, contends that though the Corporation is an authority falling within the definition of the word 'State' as defined under Art. 12 of the Constitution and therefore, certainly amenable to the writ jurisdiction of this Court under Art. 226, in a matter like this, this Court should not certain a petition in its extraordinary jurisdiction under Art. 226 of the Constitution as the petitioner-workman has an effective alternative remedy under S. 10 of the Industrial Disputes Act ('Act' for short) and the Corporation would have an effective opportunity to defend its action available to it in a proceeding before the Industrial Court and the Corporation would suffer irretrievable injury consequent on the deprivation of that opportunity.

3. In order to appreciate the aforesaid objection raised by the learned counsel for the Corporation, it is necessary to refer to the facts of case. They are : A departmental inquiry was instituted against the petitioner by the Deputy General Manager and the Divisional Controller of Gulbarga Division of the Corporation, who was the competent disciplinary authority, on the following charges.

1. You failed to collect fare Rs. 0.35 p. each from 15 passengers and issue them with tickets who were travelling from Shahpur to Bheemarayanagudi.

2. You failed to record the way bill entries of all the denominations in respect of Stage Bheemarayanagudi i.e., the actual place of check.

3. You failed to follow the rule of 'Issue & Start'.

The inquiry was conducted by an inquiry officer appointed by the disciplinary authority. He held the petitioner guilty of the charge. However, he added that there was no intention on the part of the petitioner to defraud the revenue of the Corporation, but he was certainly guilty of the violation of the rule of 'Issue and Start' for which he was liable to be punished. The disciplinary authority agreed with the finding of the inquiring authority that the petitioner was guilty of the charge, in that he had violated the rule of 'Issue and Start'. He however, disagreed with the finding of the inquiring authority that the violation was not intentional. He felt that there was an intention on the part of the petitioner to make unlawful gain for himself and loss to the Corporation revenue. By order dated 15th November, 1979 the disciplinary authority imposed penalty of dismissal from service. Against this order the petitioner preferred an appeal to the appellate authority. The appeal was dismissed on 8th July, 1982. The appellate authority also agreed with the disciplinary authority that the violation of the rule was intentional and was not in good faith. Accordingly he dismissed the appeal. Aggrieved by the said order, the petitioner has presented this writ petition. The grounds urged in support of the petition are :

(i) That the finding recorded recorded by the disciplinary authority and the appellate authority that the violation of the rule by the petitioner was intentional was invalid, as the charge framed against the petitioner did not include that ingredient.

(ii) That there has been violation of the rules regulating the procedure, in particular no valid reasons have been assigned for disagree in with the finding of the inquiring authority on the aspect of intentional violation of the rule by the petitioner.

(iii) That the imposition of extreme penalty of dismissal at any rate was highly disproportionate to the gravity of the charge framed against the petitioner, in particular if the finding recorded by the disciplinary authority and the appellate authority that there has been intentional violation of the rule by the petitioner is found to be bad in law, the quantum of penalty imposed cannot be sustained on the basis of the charge held to have been proved against the petitioner by the inquiring authority.

4. In support of his objection to the entertainment of the petition, learned counsel for the Corporation submitted as follows :

(i) The petitioner is a workman within the meaning of that expression as defined in Section 2(s) of the Act. The Corporation is an industry as defined in Section 2(j) of the Act. The dispute, namely, as to whether the order of dismissal was justified or not, is an industrial dispute within the meaning of that expression in Section 2(k) of the Act. After the introduction of S. 2-A into the Act, the petitioner can individually raise an industrial dispute without the same being sponsored by a trade union. The dispute can be referred for adjudication by the State Government under S. 10 of the Act. Under S. 11-A of the Act, an Industrial Court has got wide powers to find out as to whether the finding of guilt of workman recorded in the domestic inquiry held by the management of the industry was based on evidence and even if the finding was justified, whether the penalty imposed was justified.

(ii) Even if the Industrial Court is of the opinion that the disciplinary inquiry held by the Corporation suffered from any procedural irregularity, in that there has been violation of any procedural rules for rules of natural justice, it would be open for the Corporation to adduce evidence in support of the charge before the Industrial Court and it would be open for the Industrial Court to record its findings on the charge and if the Corporation is able to prove the charge, notwithstanding procedural defects that might have occurred in holding the disciplinary proceedings, the Corporation would be in a position to justify the order of dismissal or removal, as the case may be. Further even if the Industrial Court comes to the conclusion that the order of dismissal was not justified, the management can convince the Industrial Court that the reinstatement of the workman concerned was not called for and that payment of reasonable compensation would meet the ends of justice.

(iii) If on the other hand, if this Court were to set aside an order of removal from service on final hearing of the petition, when the petition comes up for final hearing after 3 or 4 years, as normally happens, on the ground that there has been any procedural defect in the inquiry which resulted in the imposition of penalty, the corporation would be deprived of the opportunity which it would have had before the industrial court to prove the charge against the petitioner and sustain its order. As a result, not only the corporation would have to pay the whole of the back salary, the dispute between the workman and the Corporation would also not come to an end if the charges were such that a de novo inquiry is considered necessary by the Corporation.

5. In support of his submission, as to the nature of proceedings before the industrial court and the procedure required to be followed by the industrial court was such as would give give the Corporation an opportunity to prove the charge, learned counsel for the Corporation relied on the following decisions :

Workmen of Firestone Tyre & Rubber Co., of India Pvt. Ltd. v. The Management [1973-I L.L.J. 278] in which the Supreme Court explained the scope of the power of an industrial court after introduction of S. 11-A into the Act, relevant portions which read :

'If there has been no enquiry held by the employer or if the enquiry is held to be defective it is open to the employer even now to adduce evidence for the first time before the tribunal justifying the order of discharge of dismissal.

Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or the other. Even in cases where as enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.'

(b) Cooper Engineering Ltd. v. P. P. Mundhe [1975-II L.L.J. 379] in which the Supreme Court held that in a dispute referred for adjudication under Section 10 of the Act, the first thing the Industrial Court should do is to decide the validity of the domestic inquiry and if the inquiry was found to be defective, thereafter the management has the choice of adducing evidence before the Industrial Court. The relevant portion reads -

'We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court.'

(c) Firestone Tyre & Rubber Co. v. Its Employees Union [1981-II L.L.J. 218]. Relevant portion of the judgment on which the learned counsel relied reads :

'We find no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that charge-sheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that even if an enquiry has been held or the inquiry held has not been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workman proposed to be discharged or dismissed. In a case where the charge-sheet is vague, it must be held that there has been no proper inquiry. In Bharat Sugar Mills Ltd. v. Jai Singh [1961-II L.L.J. 641] this Court held :

'But the mere fact that no inquiry has been held or that the inquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper inquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct.' 'Whether in a case, as the one before us, where it is found that proper charge-sheets had not been served on the workmen, the Tribunal can ask the parties to lead evidence to enable the Tribunal to decide the dispute between them, is directly covered by an authority of this Court. In Management of Ritz Theatre (P) Ltd. v. Its Workmen [1962-II L.L.J. 498] Gajendragadkar, J. (as he then was) speaking for the Court said : '.......... If it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employees to meet the charge or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry which has been held or the enquiry which has been held is not proper, or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal. This position also is well settled.'

Relying on these decisions, the learned counsel went on to state that Section 10 of the Act provides a more effective remedy to the workman-petitioner than the remedy available under Art. 226, in that -

(1) even if the charge is found to be proved against the petitioner, the Industrial Court would be in a position to reduce the quantum of penalty in view of the power conferred on it under Section 11-A of the Act, whereas no such modification in the quantum of penalty is permissible in a petition under Art. 226 : and

(2) when the domestic inquiry, or finding recorded in such inquiry is found to be unsustainable, the workman would have full opportunity to adduce evidence in his defence.

This being the position, he maintained that Section 10 of the Act provides a more effective alternative remedy and, therefore, when an order of dismissal or removal is questioned on grounds of procedural irregularities, the most appropriate course for this Court to do is not to entertain the petition and to ask the concerned workman to resort to the remedy available under Section 10 of the Act.

6. In support of his submission that when there is an alternative remedy available under law a petition under Art. 226 of the Constitution should not be entertained, the learned counsel for the Corporation relied on the following decisions of the Supreme Court.

(a) State of M.P. v. Bhailal Bhai : [1964]6SCR261 . The relevant portion reads :

'At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defences legitimately open in such actions.' (b) Basant Kumar Sarkar v. Eagle Rolling Mills [1964-II L.L.J. 105] a matter which arose under the E.S.I. Act in which the Supreme Court said :

'...... It is true that powers conferred on the High Courts under Art. 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act.' (c) Thansingh Nathmal v. Superintendent of Taxes : [1964]6SCR654 . In which the Supreme Court indicated that there ought to be self imposed limitation on the exercise of power under Art 226. The relevant portion reads :

'........ The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly, provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercise merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it well ordinarily be exercised subject to certain self imposed limitations.

Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up.'

7. Sri K. Channabasappa, learned counsel for the petitioner, however, submitted that a workman has no right to approach the Industrial Court directly under Section 10 of the Act and the dispute can be decided by the Industrial Court only on a reference made by the Government under Section 10 of the Act and as it was open for the Government either to refer the dispute, the so called remedy under Section 10 of the Act being dependent upon the discretion of the Government to refer or not refer, was no remedy at all and therefore, this Court should not decline to entertain the writ petition, when the allegation is that there has been procedural irregularities in the disciplinary proceedings conducted by the Corporation. He also argued that the rule that a party should resort to the alternative remedy has reference only to a remedy provided under the Service Regulations and not to an independent remedy like Section 10 of the Act.

8. As far as the submissions made by the learned counsel for the Corporation that the petitioner is a workman and the Corporation is an industry, and therefore he could raise an industrial dispute, is concerned, there is not and cannot be any controversy. Further, as regards the wide powers of, and the procedure required to be followed by, the Industrial Court is concerned, also there can be no doubt that even if there has been any procedural defect in the disciplinary inquiry held by the Corporation, in that, there has been violation of the rules of procedure or principles of natural justice in the holding of the disciplinary inquiry against a workman, the Corporation has the right to prove the charge before the Industrial Court and can sustain the order of dismissal. This position is well settled by the various decisions of the Supreme Court, on which the learned counsel for the Corporation relied, quoted earlier. The substance of the ratio of all the decisions of the Supreme Court as to the procedure required to be followed by the Industrial Court may be summarised as follows :

(1) The Industrial Court should, whenever there is an objection that the disciplinary inquiry held, was in violation of the prescribed rules of procedure or rules of natural justice, decide the validity of the inquiry as a preliminary issue.

(2) Even if the inquiry held is found to be invalid the Tribunal cannot set aside the order of dismissal straight way, if the management offers to prove the charge, in which event, the Industrial Court is bound to record evidence of both the parties and give its findings.

(3) If the finding is that the charge levelled against the workman is proved, the order of dismissal or removal, as the case may be has to be upheld. If the finding is that the charge is not proved, the penalty has to be set aside.

(4) Even if the finding is that the charge is proved, the Tribunal can substitute the order of dismissal or removal by a lesser penalty.

(Section 11-A of the Act)

In a petition under Art. 226, the High court cannot do, what the Tribunal is required and competent to do, vide (2) and (4) above. All that the High Court can do, if it comes to the conclusion that there has been procedural defect is to set aside the order of dismissal or removal, as a result or which the petitioner gets reinstated into the service and he would also become entitled to apply before the Industrial Court under Section 33(C)(2) of the Act for payment of salary from the date of dismissal to reinstatement consequent to the order of this Court and the Corporation would become liable to pay the salary, unless it is in a position to prove that the workman had been gainfully employed elsewhere, in which event a proportionate deduction in payment of arrears of salary could be claimed. The dispute however, does not come to an end and the Corporation would have the powers to institute a de novo inquiry, if it considers the gravity of the charge is such that a de novo inquiry is called for.

9. Learned counsel for the Corporation has rightly pointed out that in cases where petitions are finally disposed of after 3 or 4 years after their institution, as it normally happens, and the orders of dismissal or removal were to be quashed on grounds of procedural defect, the Corporation not only stands deprived of its opportunity to prove the charge which it would have had, if he proceedings were taken up before the Industrial Court, the Corporation would also become liable to pay heavy arrears of salary without final adjudication about the misconduct of the workman, and thus it would suffer irretrievably.

10. Therefore, having regard to the powers of and the procedure required to be followed by, an Industrial Court, as the Corporation has the right to adduce evidence before the Industrial Court in support of the charge upon a finding that the disciplinary inquiry held suffered from procedural defects, the entertaining of a writ petition under Art. 226 of the Constitution and quashing of the final order on grounds of procedural defect certainly would cause serious prejudice to the Corporation, in that it would be deprived of the valuable opportunity of proving the charge which it has if the matter were to be taken up before the Industrial Court. The consideration, namely, that the opposite party should not be denied of a valuable defence, is a good consideration, for not entertaining a petition under Art. 226 of the Constitution as observed by the Supreme Court in Bhailal Bhai's case (supra).

11. Apart from this even the point of view of the workman, the remedy provided under Section 10 of the Act is certainly a better and more effective remedy, in that the workman also would have full opportunity of adducing rebuttal evidence before the Industrial Court and would have the benefit of an independent Judicial Officer of the rank of a District Judge to appreciate the evidence and record a finding instead of a person appointed by the management to hold an inquiry. Further, even if the workman is found guilty of the charge framed against him, in view of the wide powers conferred under Section 11-A of the Act on the Industrial Court presided over by a judicial officer, he would have the benefit of adjudication even regarding the quantum of penalty as that would also be scrutinised judicially and if the Industrial Court comes to the conclusion that the penalty imposed in a given case is disproportionate to the gravity of the charge proved, it could modify the penalty. Thus both from the point of view of having an opportunity of proving the innocence of workman as also on the question of convincing the Industrial Court that the penalty imposed was disproportionate to the gravity of the charge, the workman concerned would have very effective opportunity before the Industrial Court.

12. The above aspect is highlighted by the facts of this case. One of the grounds urged by the petitioner for setting aside the penalty is that he has been dismissed on two counts, viz., (1) violation of 'Issue and Start' rule, and (2) that such violation was intentional, and that the latter finding is patently, unsustainable and that even if it can be said that the finding on the first count is unassailable. Even so this Court cannot set aside the penalty, so long the finding on one charge remains, (See State of Orissa v. Bidya Bhushan [1963-I L.L.J. 239], whereas the Industrial Court can set aside that penalty and impose a lesser penalty.

13. Learned counsel for the Corporation submitted that it was no doubt true that in the case of Devraj Urs v. K. S. R. T. C. [1970-I L.L.J. 549] a Division Bench of this Court had held that whenever a dismissed workman of the Corporation presented a writ petition challenging the validity of an order of termination or dismissal, it would be appropriate for this Court to interfere in a petition under Art. 226 of the Constitution, but he submitted that, that case was clearly distinguishable as the challenge in that case to order of dismissal was that the order had been made by an incompetent authority Further he submitted that in view of the subsequent pronouncements of the Supreme Court as to the scope to the powers of an Industrial Court and the procedure required to be followed by it and in particular the opportunity which the Corporation would have to prove the charge before the Industrial Court even if the domestic inquiry held is found to be defective being in violation of procedural rules or principles of natural justice and also having regard to the judgments of the Supreme Court relied on by him, in which the Supreme Court has clearly held that in a matter falling under Section 10 of the Act, the High Court should not entertain a petition under Art. 226 of the Constitution, prevail over the observations of this Court in Devraj Urs's case (supra).

14. In the case of Devraj Urs (supra), a Division Bench of this Court rejected an objection raised by the Corporation as to the maintainability of the petition under Art. 226 of the Constitution in which an order of the dismissal made by an officer of the Corporation was challenged. The relevant portion of the judgment reads :

'The second contention need not be gone into in detail because the existence of an alternative remedy even if it is clearly made out, is no bar to the exercise of the jurisdiction under Art. 226. It merely controls the exercise of discretion, and when a statutory body exercises or gets exercised through any of its officers a power which is in contravention of the statute, rules and regulations under the statute, the proper exercise of discretion is to quash the illegality and not remit the party to other remedies which may delay the grant of relief.'

But as rightly pointed out by the learned counsel for the Corporation, in that case the dismissal order was not challenged on grounds of procedural irregularity. It was challenged and set aside on the ground of want of competence on the part of the officer, who made the order. This evident from the preceding paragraph -

'This reinforces our previous opinion that the present disciplinary enquiries are clearly governed and controlled by Standing Order XIII. If that Standing Order is applied as it has to be, it follows that the Divisional Controller who made the orders of dismissal impugned in these writ petitions, was not competent to make those orders. The said orders are therefore liable to be quashed.'

Therefore, para 31 must be understood in the light of the finding in para 30. Sri H. G. Balakrishna fairly conceded that if an order of dismissal or removal is made by an incompetent officer, there could hardly be any justification for not entertaining the petition under Art. 226.

15. In the light of the principles laid down by the Supreme Court in the decisions (4-6) referred to earlier and the scope of the proceedings under the Act. As indicated above and in particular the light of the Corporation to adduce evidence and prove the charge before the Industrial Court after a finding that the disciplinary inquiry held by it was invalid, I am convinced that the objection raised for the Corporation is well founded and should be sustained.

16. As far as the point raised by the learned counsel for the petitioner that Section 10 of the Act is no remedy as it depends upon whether or not the Government makes a reference, the question is not res integra. In the case of Premier Automobiles Ltd. v. K. S. Wadke [1975-II L.L.J. 445] the Supreme Court considered a similar objection and said thus :

'.......... It is also true that it was not to open to the workmen concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency (vide State of Bombay v. K. P. Krishnan [1960-II L.L.J. 592] and Bombay Union of Journalists v. The State of Bombay [1964-I L.L.J. 351] can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Section 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provides a very easy and smooth remedy for enforcement of the rights and obligation created under the Act. Persons wishing the enjoyment of such right and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard.'

Similarly the submission that existence of an alternative remedy which is treated as a bar has reference only to an appeal provided for in the Regulations is without substance. The decisions of the Supreme Court (4-6) on which the learned counsel for the Corporation relied, clearly indicate that in cases where the alternative remedy available by way of civil suit or before a tribunal constituted under a special enactment is considered appropriate, a petition under Art. 226 should not be entertained which might result in depriving the opposite party of a valid defence before the Court or Tribunal, as the case may be.

The result of the discussion may be summed up as follows : Whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under Section 10 of the Industrial Disputes Act and a petition under Art. 226 should not be entertained, notwithstanding the fact that the industry is under the management of a statutory Corporation or body, which is an 'authority' failing within the definition of the word 'state' as defined in Art. 12 and amenable to the writ jurisdiction of this Court under Art. 226 of the Constitution.

17. Before concluding, I consider it necessary to observe that it would be most appropriate, both in the interest of the workman and the industries that an appropriate amendment to Section 10 of the Act should be made by the State enabling the filing of a dispute relating to dismissal or removal or discharge of a workman i.e., dispute coming within the scope of Section 2-A of the Act, directly before the jurisdictional Industrial Court, by the concerned workman, instead of approaching the Government for making a reference under Section 10 of the Act which it appears to me, is an unnecessary formality, particularly after the introduction of Section 2-A to the Act which brought about a change in that an individual workman can raise a dispute without the same being sponsored by a registered trade union of substantial number of workmen as was the position earlier. That being the position, just as the State has made a provision for raising a dispute by a dismissed employee of a co-operative Society straightway before the Registrar under Section 70 of the Karnataka Co-operative Societies Act and just as the State has also provided for the direct filing of an appeal against an order of dismissal or removal, by the concerned employee of a private educational institution under Section 8 of the Karnataka Private Educational Institutions (Discipline and Control) Act. 1975, it would be most appropriate to provide for filing of a dispute by the dismissed or removed workman before the jurisdictional Industrial Court within a period of limitation which might be fixed in such provision commencing from the date of order of dismissal or removal, or from the date of the decision of the grievance settlement authority reference to which is provided for the Section 9C of the Act sought to be introduced into the Act by the Industrial Disputes (Amendment) Bill, 1982, after that section comes into force, if its decision is not acceptable to the workman. That would ensure speedy commencement and disposal of individual industrial disputes which is in the interest of the workmen and managements of industries as well.

18. Till any such amendment is made, if such dismissed or removed workman makes an application before the Government to reefer his dispute with the management for industrial adjudication under Section 10 of the Act thereafter without insisting on the conciliation proceedings under Section 12 of the Act as the Government has undoubted powers to do so under Section 10 of the Act, and in such a case conciliation proceedings would ordinarily be purposeless. In the case of the present petitioner, learned counsel for the Corporation submitted that if the petitioner were to make such a request before the Government, the Corporation has no objection for the Government, the Corporation has no objection for the Government referring the dispute for adjudication under Section 10 of the Act.

19. For the reasons aforesaid, I make the following order :

The Writ Petition is dismissed leaving liberty for the petitioner to resort to the remedy available under the provisions of the Industrial Disputes Act.


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