Case: JOHN D SOUZA Vs. KARNATAKA STATE ROAD TRANSPORT CORPORATION

4. The facts giving rise to the present controversy may be briefly noted. The appellant-workman joined the Corporation as a bus conductor on 28 th 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 18 th August, 2005 onwards without prior permission of his superiors or getting his leave sanctioned. The Depot Manager reported the appellants absence on 25 th August, 2005. A notice was sent to him on 5 th September, 2005 to resume the duties. The appellant statedly absented himself from duty w.e.f. 18 th August, 2005 to 29 th October, 2005 for which he was served an article of charges on 23 rd 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 5 th September, 1998 till its conclusion on 12 th August, 2010. The appellant participated in the enquiry during the time the Managements 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; 18 th February, 2010; 11 th March, 2010; 15 th April, 2010; 13 th May, 2010; 4 th June, 2010; 15 th July, 2010; and 12 th August, 2010, but still failed to produce any 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previous occasions also, the appellant was dismissed from service though both those orders had been set aside and/or withdrawn.  6.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.  7. The Labour Court formulated the following four issues for its consideration:-1. Whether domestic enquiry held against first party is fair and proper?  2. Whether the Enquiry Officer is justified in holding that the charges are proved?  3. Whether the disciplinary authority is justified in dismissing the first party?  4. T o what award or order the parties entitled8. 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 6 th 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 aggrieved, the Corporation filed Writ Appeal No. 30 of 2015 which was allowed by a Division Bench of the High Court vide order dated 14 th 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:-A prima facie case does not mean a case proved to the hilt, but a case which, can be said to be established, if the evidence, which is led in support of the same, were believed. While determining whether a prima facie case has been made out, the relevant consideraiton is, whether on the evidence led, it was possible to arrive at the conclusion in question, and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself, could arrive at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has, only, got to consider whether the view taken is a possible view on the evidence on the record9. The Division Bench further observed that since the Labour Court had exceeded its jurisdiction the award passed by it as well as the order of the Learned Single Judge were liable to be set aside. The matter was, thus, remitted back to the Labour Court for reconsideration.  10. The First Additional Labour Court at Bangalore again ventured into the controversy and reiterating its view, it passed the award dated 28 th October, 2016 turning down the Corporations application under Section 33(2)(b) on the ground that though issue No. 1 was decided against the workman holding that the enquiry held against him was just and proper, but on consideration of the plethora of documents Exts. R-1 to R-104 produced by the appellant it could be safely inferred that he had, in fact, applied for leave vide application Ext. A-3 and had also reported for duty on 29 th August, 2005 but he was not allowed to join and instead the departmental enquiry was initiated. The Labour Court, thus, held that the appellant cannot be treated as an absentee from 29 th August, 2005 onwards. The absence period was not from 18 th August, 2005 to 29 th October, 2005 it could rather at best be from 18 th August, 2005 till 29 th August, 2005. The Labour Court also relied upon certain decisions to hold that it was within its jurisdiction under Section 33(2)(b) of the Act to find out that there was victimisation or unfair labour practices adopted by the Management.  11. The aggrieved Corporation assailed the order of the Labour Court before a Learned Single Judge who vide judgment dated 20.09.2017 took more or less the same view and declined to interfere with the order. The Corporation, therefore, once again questioned the order of the Learned Single Judge in Writ Appeal No. 6609 of 2017 which has been allowed by the Division Bench of the High Court vide impugned judgment dated 30 th November, 2018, essentially on the premise that the jurisdiction under Section 33(2)(b) could not be stretched and expanded to permit the parties to lead their evidence which was never produced in the domestic enquiry. Such new evidence could not be relied upon to hold that the charges were not proved or that the punishment of dismissal was disproportionate. The Division Bench, thus, held:-...From close scrutiny of the order passed by the Labour Court particularly paragraphs 25 to 45, it is evident that the findings by the Labour Court with regard to perversity of the findings recorded by the Enquiry Officer and victimization is based on additional material on record, which did not form a part of the enquiry proceeding. The Labour Court, while passing the impugned order has not only traveled beyond the order of remand, but has acted like an Appellate Authority.  The learned Single Judge has failed to appreciate that the respondent only cross-examined the witnesses of appellant in the departmental enquiry and did not adduce any evidence. The respondent for the first time before the Labour Court produced the documents viz., Exs. R1 to R104, which, have been considered by the Labour Court. The learned Single Judge has also failed to appreciate that the Labour Court was required to decide the application under Section 33(2)(b) of the Act in the light of observations made by the Division Bench of this Court in order dated 14.07.2016 passed in W.A. No. 30/2015, which had attained finality and was binding on the Labour Court. The learned Single Judge has also not appreciated that the finding with regard to victimization of respondent is based on additional material, which was not part of the enquiry conducted against the respondent12. The Division Bench further held that the Labour Court was duty-bound to decide application under Section 33(2)(b) within the restricted parameters evolved by a Co-ordinating Bench in Writ Appeal No. 30 of 2015 decided on 14 th July, 2016 in the 2 nd round of litigation.

Court's reasoning:
34. It, thus, stands out that though the Labour Court or the Tribunal while exercising their jurisdiction under Section 33(2)(b) are empowered to permit the parties to lead evidence in respect of the legality and propriety of the domestic enquiry held into the misconduct of a workman, such evidence would be taken into consideration by the Labour Court or the Tribunal only if it is found that the domestic enquiry conducted by the Management on the scale that the standard of proof required therein can be `preponderance of probability and not a `proof beyond all reasonable doubts suffers from inherent defects or is violative of principles of natural justice. In other words, the Labour Court or the Tribunal cannot without first examining the material led in the domestic enquiry jump to a conclusion and mechanically permit the parties to lead evidence as if it is an essential procedural part of the enquiry to be held under Section 33(2)(b) of the Act35. If the awards/orders of the Labour Court or the judgments passed by Learned Single Judge(s) and the Division Benches of the High Court are evaluated on these principles, it appears to us that all of them went partly wrong and their respective orders suffer from one or the other legal infirmity. While the Labour Court and the Learned Single Judge(s) have erroneously presumed that no enquiry can be held under Section 33(2)(b) without asking the parties to lead their evidence, the Learned Division Benches of the High Court have proceeded on the premise that in a prima facie fact finding enquiry under Section 33(2)(b) no evidence can be adduced or considered by the Labour Court except what is on the record of domestic enquiry. Both the views do not go hand in hand with the law laid down by this Court in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases (supra). The Division Bench of the High Court solely depended upon Martin Burn Ltd. and Cholan Roadways Ltd. (supra) to hold that the scope of enquiry under Section 33(2)(b) being limited to see that prima facie the enquiry is just and proper, the Labour Court is precluded from asking the parties to lead any other evidence. Such a view is not in confirmity with the exposition of law in Punjab National Bank, Mysore Steel Works Pvt. Ltd. and Lalla Rams cases, cited above. The Labour Court did not exceed its jurisdiction in permitting the parties to adduce the evidence before it though it erred in relying upon the same without holding that the enquiry was defective or the punitive action was vitiated for want of bona fides. The finding on issue No. 1 that the domestic enquiry was held in a proper and fair manner also acquires significance here. Still further, the scope and object of Section 33(2)(b) cannot be expanded to an extent that the very scheme of adjudication of an `industrial dispute under Sections 10(1)(c) and (d) read with Section 11A of the Act becomes superfluous38. The Labour Court or Tribunal, therefore, while holding enquiry under Section 33(2)(b) cannot invoke the adjudicatory powers vested in them under Section 10(i)(c) and (d) of the Act nor can they in the process of formation of their prima facie view under Section 33(2)(b), dwell upon the proportionality of punishment, as erroneously done in the instant case, for such a power can be exercised by the Labour Court or Tribunal only under Section 11A of the Act40. 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 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.