John D Souza vs Karnataka State Road Transport ...

4. The facts giving rise to the present controversy may be briefly noted. The appellant-workman joined the Corporation as a bus conductor on 28th November, 1984. He had been a Union activist and also the General Secretary of the KSRTC and BMTC United Employees Union. The appellant reportedly remained absent from duty since 18th August, 2005 onwards 2 without prior permission of his superiors or getting his leave sanctioned. The Depot Manager reported the appellant’s absence on 25th August, 2005. A notice was sent to him on 5th September, 2005 to resume the duties. The appellant statedly absented himself from duty w.e.f. 18 th August, 2005 to 29th October, 2005 for which he was served an article of charges on 23rd June, 2006. He did not submit any reply to the charge sheet, hence the disciplinary authority decided to hold an enquiry. A retired Joint Law Officer of the Corporation was appointed as the Enquiry Officer. The enquiry was held on various dates commencing from 5th September, 1998 till its conclusion on 12th August, 2010. The appellant participated in the enquiry during the time the Management’s witnesses were examined and after closure of the evidence of Management he was given an opportunity to produce his witnesses and also the documents for which the enquiry proceedings were adjourned to 28 th January, 2010. The appellant, however, sought adjournments on 28 th January, 2010; 18th February, 2010; 11th March, 2010; 15th April, 2010; 13th May, 2010; 4th June, 2010; 15th July, 2010; and 12th August, 2010, but still failed to produce any 3 evidence. The enquiry was eventually closed and report was submitted holding that the charges had been proved. Thereafter a show cause notice dated 21 st August, 2010 along with the enquiry findings was served upon the appellant to which he submitted his reply. The disciplinary authority was not satisfied with the explanation furnished by the appellant, hence it passed the order of dismissal from service on 11.10.2010.

5. The past service record of the appellant appears to have weighed in the mind of the disciplinary authority as there were 30 other default charges of one or the other nature and on two previous occasions also, the appellant was dismissed from service though both those orders had been set aside and/or withdrawn.

6. Since an `industrial dispute’ in Reference No. 243/2006 in which the appellant was also a concerned workman was pending before the Labour Court-cum-Industrial Tribunal, the Corporation moved an application under Section 33(2)(b) of the Act seeking permission of the Labour Court to effectuate the order of dismissal. It further appears that the appellant meanwhile attained the age of superannuation. 4

8. The Labour Court after perusing the evidence adduced on Issue No.1 passed an order dated 16 th March, 2012 answering Issue No. 1 in `affirmative’ and held that the domestic enquiry was conducted in a fair and proper manner. The appellant unsuccessfully challenged that order before the High Court. He thereafter filed SLP(C) Nos. 34485- 34486/2013 in this Court, but the matter was rendered infructuous as meanwhile the Labour Court vide its final order/Award dated 6th November, 2013 decided Issue Nos. 2, 3 and 4 in favour of the appellant. The application of the Management under Section 33(2)(b) was consequently rejected. The Corporation challenged the final order of the Labour Court, but a Learned Single Judge of the High Court dismissed its Writ Petition on 21 st November, 2014. Still 5 aggrieved, the Corporation filed Writ Appeal No. 30 of 2015 which was allowed by a Division Bench of the High Court vide order dated 14th July, 2016 laying down that the Labour Court while exercising jurisdiction under Section 33(2)(b) could not have permitted the parties to adduce evidence as the scope of enquiry thereunder is very limited. The High Court, thus, viewed:-

40. This is, however, not the end of the matter. We are not oblivious to the fact that the appellant attained the age of superannuation in the year 2010. There might be some substance in the allegation that he used to indulge in the acts of indiscipline, insubordination or may have absented himself from duties for a few days, there are, however, no allegations of financial irregularity or embezzlement of funds. It has come on record that when the proceedings were pending before the High Court, the parties were directed to mediate and submit their settlement proposals. The appellant also submitted his proposal which is on record, in which he demanded 75% of back wages whereas the Corporation agreed to pay 50% back wages to him. The settlement could not take place due to the difference in demand and offer to the extent of 25% back wages. Though the appellant seems to be in no mood to settle the dispute, we have not lost the hope and are sanguine that better sense will prevail upon both the parties and they will make an earnest and renewed effort through the Mediation Centre of High Court of Karnataka at Bangalore for amicable settlement of the dispute. This can only happen by adopting 33 the give and take approach, especially to avoid prolonged litigation. The appellant may agree to take less than 75% back wages and the Corporation may incline to offer more than 50% back wages. Mediators will surely make efforts to bridge the gap and see that the dispute comes to an end. Both the parties, must also bear in mind that the recourse to `mediation’ suggested by us is one of the statutory mode prescribed for resolving an `industrial dispute’ under the Act. We, therefore, direct both the parties to appear before the Mediation Centre of the High Court of Karnataka at Bangalore on 4th November, 2019 at 11.00 A.M. and let such proceedings be concluded by 3 rd December, 2019. Till such time, the stay of proceedings before the Labour Court granted by this Court shall continue to operate. If the parties are able to resolve their dispute amicably, the Mediation Centre of the High Court of Karnataka at Bangalore shall send its report to this Court. Registry is directed to list the matter before the Court within two weeks from the date of receipt of the mediation report for further directions, if need be. However, if the mediation fails, the parties are directed to appear before the Labour Court at Bangalore on 5 th 34 December, 2019. In that event, the Labour Court shall decide the matter on merits without taking any lead from what we have suggested for the purpose of amicable settlement. It is made clear that we have not expressed any views on merits of the case.

41. In the light of above discussion, the appeal is allowed in part and the impugned judgment dated 30.11.2018 passed by the Division Bench of the High Court is modified to the extent mentioned above.

(SURYA KANT) NEW DELHI DATED : 16.10.2019 35