IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF APRIL, 2025 BEFORE THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA WRIT PETITION No.56423/2014 (L-TER) BETWEEN: M/S. BATA INDIA LTD., PLOT NO.474, 475 & 476, 4TH PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER-SOUTHCAN MR.KUHARAN MUKHOPADHYAY (AGE:40 YRS) ... PETITIONER (BY SRI PRADEEP S. SAWKAR, ADVOCATE) AND: MR. H.B. PUTTASWAMY GOWDA (MAJOR), C/O. RAJANNA BUILDINGS, 322/2, NEAR STANDARD SCHOOL, T. DASARAHALLI, BANGALORE-560 057. ... RESPONDENT (BY SMT. G. KOKILA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 13.08.2013 PASSED BY THE INDUSTRIAL TRIBUNAL, BANGALORE IN SERIAL APPLICATION NO.49/2003 IN I.D.NO.138/2000 VIDE ANNEXURE-J. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15/01/2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: - 2 - CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA CAV O R D E R The petitioner – M/s. Bata India Limited is challenging the order passed by the Industrial Tribunal, Bengaluru (‘Tribunal’ for short) dated 13.08.2013 in Sl. Appl. No.49/2003 in ID. No.138/2000, wherein, the Tribunal by the impugned order dismissed the approval application filed by the petitioner under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (‘ID Act’ for short). 2. The respondent (hereinafter referred to as ‘workman’) was issued with a charge-sheet on 11.11.1999 for absenteeism and insubordination. Domestic enquiry was conducted and it was found that the charges were proved. While this was ongoing, a second charge-sheet was issued on 02.05.2000, and another domestic enquiry was conducted. The industrial dispute in ID No.138/2000 was raised under Section 10 (1)(d) of the ID Act on reference made by the Government by its order dated 16.11.2000 for adjudication of the points of dispute which reads as under: - 3 - “1. Is the management justified in declaring lockout from 8.3.2000 after the incidents relating to go- slow and gherao? 2. Are the workmen justified in going on strike from 3.7.2000? Are the management justified in demanding undertaking from the workmen after lifting of lock out? 3. Is the I Party union justified in demanding full wages for the workmen during the months of February and March 2000, when the workmen went slow in their work? 4. If not, to what reliefs are the workmen entitled?” 3. After reviewing both the enquiry, the disciplinary authority dismissed the workman on 19.11.2003. Since ID No.138/2000 was pending, the petitioner filed an approval application under Section 33 (2)(b) of the ID Act. 4. The Tribunal by the impugned order dismissed the approval application filed by the petitioner observing that the approval application under Section 33 (2)(b) of the ID Act is not maintainable, as the dispute in ID No.138/2000 was - 4 - pending and the petitioner ought to have filed an application under Section 33 (1)(b) seeking prior permission from the Tribunal before dismissing the workman. 5. Learned counsel for the petitioner argues that the Tribunal incorrectly handled two important aspects: Firstly, the tribunal did not distinguish between the issues of lockout and the misconduct related to the workman’s behaviour. This misconduct, according to the petitioner, wasn't part of the dispute in ID No.138/2000. It is further argued that the tribunal wrongly interpreted the distinction between 33 (1)(b) and Section 33 (2)(b) of the ID Act. Section 33(1)(b) requires prior permission before certain actions are taken while 33 (2)(b) requires approval after the action had already been taken. It is contended that the issue in ID No.138/2000 was unrelated to the workman, as he was not a connected workman in ID No.138/2000. It is submitted that even if the charges against the workman are tied to a composite punishment, the petitioner had the option to prove before filing under Section 33 (1)(b) or 33 (2)(b) of - 5 - the ID Act. This is based on the ‘the doctrine of election’ which means the petitioner has the right to choose how to proceed, depending on the circumstances. Additionally, it is submitted that there is no non-obstante clause in Section 33 (1)(b) or 33 (2)(b) of the ID Act. Supporting his submission, learned counsel places reliance on the following decision: i. Workmen of Mysore Lamp Works vs. State and another1 (Workmen of Mysore Lamp Works) ii. Bharat Electronics Limited vs. Industrial Tribunal, Karnataka, Bangalore and another2 (Bharat Electronics Limited) 6. Per contra, learned counsel appearing for the workman argues that the tribunal was correct in dismissing the petitioner's application for approval under Section 33 (2)(b) of the ID Act. According to the learned counsel the petitioner ought to have sought prior approval under Section 33 (1)(b) instead, because the workman was connected to the dispute in ID No.138/2000, which has been referred to 1 W.P.No.17184/1980 & connected matters D.D. on 20.03.1984 2 (1990) 2 SCC 314 - 6 - the Tribunal by the State Government. It is submitted that the petitioner dismissed the workman and other workers while the dispute in ID No.138/2000 was still pending. The counsel argues that in these circumstances, the petitioner should have applied for permission before taking the action of dismissal, rather than taking post-facto approval under Section 33 (2)(b). The misconduct that led to the dismissal is claimed to be directly tied to the subject matter of the dispute, and hence, a prior approval should have been obtained. Counsel for the workman further argued that the petitioner’s application is essentially an attempt to re-litigate matters that have already been settled in earlier proceedings. Specifically, eight out of nine serial applications were dismissed between 2008 and 2009, with the present workman’s serial application remaining pending until 2013. Against the dismissal of the application concerning the eight co-workers, the petitioner appealed to this Court, writ petition and the writ appeal were dismissed and upheld by the Apex Court in SLP No.21879/2009. It is submitted that - 7 - suppressing the fact that the SLP was dismissed, the petitioner is trying to raise the same issue again, which has already been addressed and resolved. 7. It is argued that even if the petitioner had the right to choose, the doctrine of estoppel of election prevents from doing so. If the petitioner attempts to separate the two charge-sheets and treat the dismissal as based solely on the first charge sheet, the tribunal would not have granted approval under Section 33 (2)(b) of the ID Act. This is because the first charge sheet, which relates to a minor offence of absenteeism (for only an hour) would normally result in a warning, not a dismissal. Therefore, it is contended that the dismissal was overly harsh and not justified under industrial jurisprudence, as such an action would not be considered appropriate for such a minor infraction. 8. Having heard the learned counsel appearing for the parties, the points that fall for consideration are: - 8 - “(i) Whether the application filed by the petitioner under Section 33(2)(b) of the ID Act was maintainable in the light of dispute pending before the Industrial Tribunal in I.D.No.138/2000? (ii) Whether the petitioner had a right of Doctrine of Election when the charges leveled against the respondent –workman were two separate charge sheets and the right of election made by the petitioner by filing application under Section 33(2)(b) of the ID Act was justified?” 9. The dispute involves dismissal of the workman who was employed as an Operator (Grade – C) in the petitioner’s factory. The workman was dismissed from service after two charges were leveled. The charge sheet dated 11.11.1999 was the acts of misconduct, which reads as under: “It has been brought to our notice that on 09.11.99, when you were working in the Night Shift on 225 Machine with other co-workers, you left your machine and workplace and found missing from the workplace from about 2.30 a.m onwards. - 9 - Whereas, the shift incharge has tried to trace your whereabouts, but he could not trace you anywhere in the premises of the Factory. Whereas, atlast, you came to your workplace to rejoin the duty at about 3.30 a.m. Your absence from your place of work during working hours without the permission, though you are engaged on a work of continuous nature amounts to utter lack of responsibility and dereliction. Whereas, on your return to your workplace when the shift incharge asked your whereabouts, you shouted against him in louder voice giving insolent replies and challenged him by saying “£Á£ÀÄ M/C ºÀwÛgÀ£Éà EzÉÝ. FUÉãÀÄ? Complaint ªÀiÁrÛgÁ? CµÀÉÖ vÁ£ÉÃ? ªÀiÁr” Your false replies that you were near the machine only and insolent behaviour challenging the Superiors amounts to indecent behaviour, gesture and subversive of discipline. The aforesaid acts of omission on your part are of serious and grave nature and serious misconduct under standing order as detailed below and render you liable for severe disciplinary action. Clause 30.49 Unauthorised absence from the place of work - 10 - Clause 30.1 Use of impertinent language, indecent behaviour, gesture Against any superior officer, insult to superior. Clause 30.14 Disobedience of instructions given by any superiors Clause 30.28 Misbehaving with any officer. Clause 30.16 Commission of any act subversive of discipline or good behaviour You are therefore hereby called upon to show cause within three days from the receipt of this charge sheet as to why disciplinary action should not be taken against you. In case, you fail to submit your explanation within the time specified above, it will be presumed that you have no explanation to offer and have accepted the charges as correct and further necessary action would be taken without any reference to you.” 10. The second charge sheet-cum-show-cause notice dated 02.05.2000 is as under: “Clause 30.1: Use of impertinent language, indecent behaviour, gesture against any superior Officer of the Company - 11 - Clause 30.2: Participation in a stay-in strike or any form of strike Clause 30.3: Inciting or instigating other employees to take part or to act otherwise in furtherance of a stay-in Strike in any form or action in furtherance of such strike. Clause 30.16: Commission of any act subversive of discipline or good behaviour within the premises or precincts of the Company. Clause 30.17: Riotous or disorderly behaviour or conduct endangering the life or safety of any person or any other act subversive of discipline whether committed inside or outside the Factory Premises. Clause 30.28: Threatening, assaulting, intimidating or misbehaving with any Officer whether inside or outside the factory premises or incitement to or averment of any of these acts. Clause 30.40: Any act of coersion against the Management or any of the - 12 - Managerial Staff of the Company for fulfilment of demands. Clause 30.76: Conduct within the factory in a manner which is likely to endanger the life or safety of any person. Clause 30.78: Instigation, incitement; aiding or abetment of any act of misconduct under these Standing Orders. Clause 30.79: Gherao, Dharna, abusing superiors, causing obstruction to ingress or egress. Clause 30.83: Any other act of omission or commission not specifically provided for in these standing orders but which are acts subversive of decency, discipline and morality according to normal human discipline in the Company. Clause 30.86: Squatting or remaining any where within the premises of establishment other than the appointed place with a view to intimidate, coerce or threaten any Officer of the Company. - 13 - Clause 30.87: Deliberately making false, vicious or malicious statement in public or otherwise against the Company or any Officer of the Establishment. Clause 30.90: Any act or conduct inside / outside the Factory which is detrimental or prejudicial to the interest or image or reputation of the Company. Clause 30.91: Conduct unbecoming of an employee of the Company.” 11. The charges leveled against the workman are: (i) Dereliction of duty and insolence in 1999 charge sheet. (ii) Involvement in agitating and illegal activities including gherao and violence against management officials in 2000. 12. Domestic enquiry was conducted and he was found guilty and subsequently dismissed from service in 2003. The State Government on 16.11.2000 referred the dispute for adjudication under Section 10 (1)(d) of the ID Act - 14 - and the reference made by the State Government as stated supra was related to the justification of a lockout after the incidents relating to go-slow and Gherao. The dispute referred to in ID No.138/2000 was not about specific misconduct of the workman. The workman was only a ‘concerned workman’ and not directly involved in the dispute regarding Gherao or go-slow. The workman’s dismissal was based on a misconduct of the charge sheet dated 11.11.1999 and 02.05.2000. There being two charges leveled against the workman, which allows the employer to take disciplinary action, the petitioner had an option of either seeking approval by filing under Section 33 (2)(b) of the ID Act or permission under Section 33(1)(b) of the ID Act. The workman’s dismissal based on misconduct was not related to the lock-out dispute, as such, it did not require prior permission under Section 33(1)(b) of the ID Act. The domestic enquiry conducted by the petitioner, the tribunal held that it was fair and proper and the workman was provided with opportunity to defend himself. The tribunal’s - 15 - order rejecting the application for approval filed by the petitioner under Section 33 (2)(b) of the ID Act was incorrect. 13. The petitioner’s application for approval under Section 33 (2)(b) of the ID Act was maintainable and the tribunal ought to have adjudicated the application on its merits. The workman placed reliance on various orders against the co-workers who were dismissed from service along with the workman herein, to contend that maintainability of the application under Section 33 (2)(b) of the ID Act was argued in those petitions, which was not considered by this Court and confirmed by the Apex court. The same has attained finality. 14. The orders relating to co-workers was a case where a single charge sheet dated 02.05.2000 was levelled against the co-workers and their involvement in agitating including gherao and violence against the management officials. The involvement of co-workers was the dispute - 16 - which was pending in I.D.No.138/2000 under which a reference was made. Dismissal of the workers filed by the co-workers will not aid the present workman as the fact situation is different from the present case, in as much as in the said case, the charges leveled against those workmen was relating to the second charge subject matter of ID No.138/2000, in those circumstances, the rejection of the application filed by the petitioner seeking approval under Section 33 (2)(b) of the ID Act was justified. 15. In the instant case, the tribunal has failed to consider that the workman herein is not similarly placed with the other co-workmen, the petitioner’s application under Section 33 (2)(b) of the ID Act seeking approval was maintainable and the tribunal was not justified in rejecting the application. The misconduct for which the workman was dismissed was unrelated to the dispute in I.D.No.138/2000 and therefore, no prior permission was required under Section 33 (1)(b) of the ID Act and post facto approval under - 17 - Section 33 (2)(b) of the ID Act was the correct procedural course. 16. To the contention raised by the workman that the first charge leveled against the workman is a minor act of misconduct i.e., absenteeism of nearly for an hour from the place of work and given the gravity of offence alleged against the workman would not warrant dismissal of the workman from service, it is necessary to state here that the scope and ambit of proceedings under Section 33 (2) (b) of the ID Act vis-a-vis Section 10 (1) of the ID Act is different. The proceedings under Section 33 (2)(b) of the ID Act are of a limited scope and the same is not required to be exercised akin to the proceedings under Section 10 of the ID Act, when the workman initiates the proceedings challenging the action initiated against him. The tribunal cannot give a finding that the punishment is grossly disproportionate to the proved charges in the proceedings under Section 33 (2)(b) of the ID Act as is well settled in the case of The workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. Vs. The - 18 - Management and others3 (Firestone Tyre) and John D’souza Vs. Karnataka State Road Transport Corporation4 (John D’souza), wherein it is clearly held that it is not open for the tribunal to exercise the jurisdiction under Section 11A of the proceedings under Section 33 (2)(b) of the ID Act. Thus, the contention of the workman that the first charge leveled against the workman is a minor act of misconduct and order of dismissal would be disproportionate would not be considered in the proceedings under Section 33 (2)(b) of the ID Act and would fall for consideration in the proceedings that would be initiated under Section 10 of the ID Act. Accordingly, the points framed for consideration are answered and this Court pass the following: O R D E R i. The writ petition is allowed in part. ii. The impugned order dated 13.08.2013 passed by the tribunal in serial application 3 (1976) 3 SCC 819 4 (2019) 18 SCC 47 - 19 - No.49/2003 in ID No.138/2000 is hereby set aside. iii. The matter is remitted back to the tribunal for fresh consideration on merits of the application seeking approval. iv. Parties to appear before the tribunal on 25.04.2025. Pending I.A.s if any, do not survive for consideration and all contentions are kept open, to be urged before the Tribunal. Sd/- ________________________ JUSTICE K.S. HEMALEKHA MBM/SS Page No.19 retyped and replaced, vide Court order dated 27.06.2025.