Karnataka High Court
M/S J K Tyres And Industries Ltd vs Sri L R Govinde Gowda on 26 February, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.24467 OF 2017 (L-RES)
BETWEEN:
M/S. J.K.TYRES AND INDUSTRIES LTD.
K.R.S. ROAD, METAGAHALLI
MYSORE-570 016
REPRESENTED BY ITS
DEPUTY GENERAL MANAGER-HR & IR
SRI VIKRAM HEBBAR.
...PETITIONER
(BY SRI S.N. MURTHY, SENIOR COUNSEL A/W.
SRI SOMASHEKAR, ADV.)
AND:
SRI L.R. GOVINDE GOWDA
MAJOR
S/O. SRI RAME GOWDA
NO.4063, NEAR HAMPI CIRCLE
VIJAYANAGAR II STAGE
MYSORE-560 017. ... RESPONDENT
(BY SRI T.S. ANANTHARAM, ADV.,)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 13.4.2017 IN SL. APPLN. 5/2015
PASSED BY THE HON'BLE INDUSTRIAL TRIBUNAL, MYSORE AT
ANNEXURE-J TO THIS W.P. AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is assailing order dated 13.04.2017 passed in Spl.Apl.No.5/15 by the Industrial Tribunal, Mysore (Annexure-'J').
2. Petitioner issued a charge sheet and imputation of charges against the respondent herein alleging thereunder that he had abused a co-employee in foul language referring to his wife and had assaulted him, torn his uniform and threatened him with dire consequences. Simultaneously, respondent was kept under suspension from 26.05.2014. Not being satisfied with the reply submitted by respondent, the Disciplinary Authority appointed an Enquiry Officer who commenced the enquiry proceedings. The respondent is said 3 to have taken assistance of legal adviser of the Union to defend himself in the domestic enquiry and on account of Enquiry Officer being unable to proceed with the enquiry, due to the demands made by respondent-workman that enquiry shall be held on particular dates which is said to have not been convenient to the Enquiry Officer, the Enquiry Officer resigned and another Enquiry Officer came to be appointed.
3. On the strength of the complaint filed by the victim viz, co-employee of respondent, criminal prosecution has been initiated against the respondent which is now pending in C.C.No.1824/2014 before the Jurisdictional Magistrate Court. The respondent thereafter, filed a suit in O.S.No.1375/2014 and obtained an order of temporary injunction staying the Enquiry proceedings. On account of resistance from a section of employees against the Petitioner- Management for not taking action against respondent for assaulting another employee within the factory premises 4 during working hours, petitioner-Management dismissed the respondent by order dated 5.6.2015 (Annexure-'B').
4. On account of charter of demands raised by the Union which was pending in reference No.70/1990 and respondent-workman also being a Member of the said Union, petitioner-Management as required under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short 'the Act'), simultaneously, issuing order of dismissal, filed an application seeking approval of the order of dismissal passed against respondent, which came to be numbered as Spl.Apl.No.5/2017. Said application came to be resisted by the respondent-workman by filing a detailed statement of objections as per Annexure-'D' and in the said proceedings, an application under Section 10(4) and Section 11 of the Act read with Section 151 of Civil Procedure Code, 1908 came be filed by respondent-workman seeking interim relief at 100% of his last drawn wages, pending disposal of said application 5 contending inter alia that he is in great difficulty and he is unable to maintain himself and his family members. This application came to be resisted to by the Management by filing its statement of objections as per Annexure-'F' and on the said application, both parties tendered their evidence and on appreciation of evidence, Tribunal by impugned order dated 13.04.2017 (Annexure-'J') allowed the application in part by directing the Management to pay 40% of the last drawn wages to the respondent for his maintenance from the date of dismissal, till conclusion of the case or until further orders. Same is questioned by the Management in this writ petition.
5. I have heard the arguments of Sri.S.N.Murthy, learned Senior counsel appearing for petitioner and Sri.T.S.Anantharam, learned counsel appearing for respondent-workman.
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6. It is the contention of Sri.S.N.Murthy, learned Senior counsel appearing for petitioner that Labour Court / Industrial Tribunal while considering an application for grant of interim maintenance will have to examine the said application on the cardinal principle of workman having a prima-facie case and such workman being un-employed and unable to maintain himself. The said aspect being the pre-requisite, the absence of such plea or such plea having been proved would dis-entitle the workman to claim such interim maintenance. He would also submit that two essential factors which are required to be considered by the Tribunal or Labour Court as the case may be are:
(a) Workman should have a prima-facie case.
(b) Workman should have no source of income for maintaining a decent living during the pendency of the suit / petition / application and as such, the Labour Court / Industrial Tribunal would have to examine as to whether 7 there is any necessity to award interim maintenance during the pendency of proceedings and in the absence thereof, said Authority would not get jurisdiction to grant any interim maintenance at all.
7. He has also drawn the attention of this Court to the impugned order, to buttress his argument that Tribunal itself has noticed that workman has several properties at his disposal, he is financially sound and not being in any financial distress position, he is capable of maintaining himself without any interim maintenance, and yet, these facts have been conveniently overlooked by the Tribunal and as such, impugned order is liable to be set aside. He would submit that finding recorded by the Tribunal is contrary to the principles enunciated by the Hon'ble Apex Court in catena of judgments and filing of false affidavit would dis-entitle the workman to any interim relief. On these amongst other 8 grounds raised in the writ petition, he prays for impugned order being set aside.
8. Per contra, Sri. T.S.Anantharam, learned counsel appearing for workman would not only support the impugned order, but would also contend that though the interim maintenance which is sought for was 100%, Tribunal having noticed the facts, has ordered only 40% of last drawn wages as interim maintenance, which would meet the ends of justice and this Court while exercising jurisdiction under Article 227 of Constitution of India should not interfere with said finding of fact since right available to the workman to seek for interim maintenance would be frustrated or truncated on account of raising false pleas by the Management and availing such orders. Hence, referring to the judgment of Hon'ble Apex Court in the case of JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD., v. RAM GOPAL SHARMA AND OTHERS reported in 2002(1) LLJ Page 834, he contends that refusal 9 to grant permission under Section 33(2)(b) of the Act, would follow that an employee continued to be in service as if order of discharge or dismissal never had been passed and relationship of employer and employee continues and the relationship would come to an end de jure only when the authority grants the approval. But in the instant case, there being no enquiry and according of approval of the order of dismissal under Section 33(2)(b) of the Act, is yet to be adjudicated and as such, the relationship of employer and employee continues. Hence, he contends that respondent would be entitled for being paid subsistence allowance during the pendency of the enquiry proceedings and as such, respondent is also entitled for interim maintenance. In the event of enquiry having been continued and on account of such steps having not been taken by the petitioner-Management, same cannot be a ground to now contend that respondent-workman is not entitled to interim maintenance which is an interim relief granted to workman in 10 order to overcome his financial difficulties during the pendency of an application for approval of order of dismissal. He also submits that irrespective of immovable properties being held by the workman, right to seek for interim maintenance cannot be scuttled or taken away on the ground that workman is possessing immovable properties and there being no evidence to the effect that properties in question which has been referred to by the petitioner belonged to respondent. Hence, he contends that Tribunal was fully justified in awarding 40% as back wages to the respondent. On these grounds, he prays for dismissal of the writ petition.
9. Having heard the learned advocates appearing for the parties and on perusal of records, it emerges that there cannot be any dispute to the proposition that Tribunal is not precluded from considering an application for grant of interim relief before recording its finding either with regard to the Domestic Enquiry or with regard to according approval of an 11 order of dismissal while considering an application filed by the Management under Section 33(2)(b) of the Act.
10. Hon'ble Apex Court in its authoritative pronouncement in Jaipur Zila's case referred to herein supra has held that if approval is not granted under Section 33(2)(b) of the Act or in other words, order of dismissal passed by the Management against a workman is not approved, such dismissal order would become ineffective even from the date when it was passed. It came to be held:
"14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge of dismissal never had been 12 passed. The order of dismissal or discharge passed invoking Section 33(2) (b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not give, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available".
11. In the light of the above referred authoritative pronouncement of the Hon'ble Apex Court referred to supra, it cannot be gainsaid by the Management that workman would not be entitled to seek interim relief during the pendency of the proceedings before it. However, as to the quantum of interim maintenance that he/she would be 13 entitled to, all depends upon facts and circumstances of each case. There cannot be any straight jacket formula in this regard and grant of interim relief would take its shape and colour depending upon facts. The very expression "interim relief" would clearly indicate that in order to overcome the difficulties that a workman may be facing during the pendency of proceedings certain amount is paid by way of interim relief not exceeding 100% last drawn wages. It is no doubt true that interim relief will always be in aid of main relief. It would be benefit to note the expression used in Section 17-B of the Act namely "full wages" which would clearly disclose, where in any case, a Labour Court, Tribunal or a National Tribunal by its award directs reinstatement of any workman and the employer would be liable to pay such workman, during the period of such pendency proceedings either in the High Court or the Hon'ble Apex Court, full wages as last drawn by him, inclusive of any maintenance allowance admissible to him under any rule and the right provided there 14 under would be subject to such workman had not been employed in any establishment during such period and affidavit to that effect had been filed in such Court by such workman.
12. In other words, it is not an absolute right without any fetter that workman would be entitled to automatic 100% last drawn wages. It is no doubt true that where an affidavit is filed by the workman seeking maintenance and same is disputed by the Management, then burden automatically shifts on the Management to dis-prove said fact or claim made by a workman is untrue or such workman is not entitled to wages under Section 17-B of the Act. In this background, it would be apposite to note the judgment of the Hon'ble Apex Court in the case of RAJINDER KUMAR KINDRA v. DELHI ADMINISTRATION AND OTHERS reported in AIR 1984 SC 1805, whereunder, the expression "gainful employment" had come up for consideration and it 15 came to be held by Hon'ble Apex Court that if a workman were to assist his father-in-law in his coal depot and living with him and having no other source, if it is to be treated as gainful employment, begging by the employee would as well as be gainful employment. It was held by the Hon'ble Supreme Court:
"21. It was next contended on behalf of the appellant that reinstatement with full back-wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in- law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in- law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to 16 begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal- depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment E so as to reject the claim for back- wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back-wages and all consequential benefits".
13. In the background of above case-laws, when facts on hand are juxtaposed and examined, it would disclose that 17 Tribunal while ordering 40% of back wages has observed to the following effect:-
(a) In the event of workman were to succeed in his claim, he would be entitled for backwages;
(b) The application filed under Section 33(2) (b) of the Act by the Management itself discloses that no enquiry was conducted;
(c) In order to meet the day to day expenses of the workman, certain amount has to be awarded towards subsistence allowance;
14. There is no dispute to the fact that in the instant case before an order of dismissal came to be passed, enquiry was not completed and enquiry report was not available before the Disciplinary Authority to arrive at a conclusion that charges levelled against workman was proved. The reason assigned by the Management for not proceeding with enquiry was on the ground that workman had obtained an 18 order of temporary injunction from Civil Court in O.S.No.1375/2014 and as such, in order to maintain a conducive atmosphere and prohibit any criminal activities being carried out in the factory premises and to placate the agitating workman for not having taken action against respondent. Management is said to have taken immediate step to pass an order of dismissal against respondent-workman in the larger interest of the Organization. Whether such an order could have been passed or not? Whether it was in violation of principles of natural justice, are all issues which will have to be gone into by the Tribunal while adjudicating the application filed under section 33(2)(b) of the Act which is pending before it. In fact, that would also be an issue for the Management to prove before the Jurisdictional Tribunal and as such, no opinion is expressed in that regard, inasmuch as any opinion expressed by this Court, is likely to prejudice the rights of both parties. It cannot be gainsaid by the workman that Management 19 would not be entitled to or would not be at liberty to prove that even in the absence of conducting an enquiry, the order of dismissal was justified. Hence, no opinion is expressed in that regard and same is kept open to be adjudicated by the Tribunal.
15. Coming back to the core issue with regard to entitlement of the workman for interim maintenance which is the subject matter of the present writ petition, Tribunal after appreciation of evidence has noticed at paragraph No.19 that workman has admitted in his cross-examination that more than Rs.17 lakhs is in his savings bank account and it is in respect of sale of his house. If this was the plea which came to be put forth by the Management or suggestion made to the workman and same is admitted by him, then defence put up by the Management that workman is financially sound was established and of course, said evidence could have been rebutted by the workman by placing relevant material in this 20 regard or prove same was factually incorrect. For the reasons best known, this exercise was not undertaken by the workman. Admission itself is a best piece of evidence which would be available before a judicial authority for appreciation of the case put forth by a party. If the evidence available on record is not considered or ignored, the findings of Tribunal would have to be necessarily held as one sided and it would be an erroneous findings based on improper appreciation of evidence. In fact, workman in his cross-examination dated 18.10.2016, though denies that seven apartments situated at Subramanyanagar 2nd stage, stands in his name, yet he admits that light and water bills marked as Exs.A-2 to A-8 relating to said apartments stands in his name. Respondent- workman would also not deny the fact of having a savings bank account with State Bank of India vide A/c.No.10212388577. He would also admit that he can produce the pass book. But same did not see the light of the day before the Tribunal. In the absence of such evidence 21 being placed before the Tribunal by the workman, Tribunal could not have directed the petitioner-Management to pay 40% of the last drawn wages towards interim maintenance particularly when the Management having pleaded that workman was not in financial distress and had proved this fact. Merely because there was no domestic enquiry was conducted by the Management and chances of workman being entitled to succeed in his claim, would not automatically entitle him to seek for interim maintenance. The contention of the workman which is to the effect that he would be entitled to 100% last drawn wages as interim maintenance, even in the absence of any positive evidence tendered with regard to his financial condition and even in a situation where Management had been able to demonstrate that such workman is financially sound cannot be accepted. In the instant case, evidence is available on record viz., admission in the cross-examination of workman that he is having Rs.17 lakhs in his savings bank account by virtue of 22 sale of his house, could not have been ignored by trail court while examining the prayer for interim maintenance. However, it is for the workman to explain this aspect by tendering rebuttal evidence, if any. At the same time, Management could not have contended that on account of the sale proceeds being available with the workman, he was disentitled to claim interim maintenance. In the absence of any positive evidence available before the Tribunal with regard to the financial difficulty in which workman is placed, Tribunal could not have awarded 40% of last drawn wages as interim maintenance to the workman.
16. In view of aforestated facts and evidence tendered by parties having not been considered by the Tribunal in proper perspective as noticed herein above, Tribunal has arrived at a conclusion that workman would be entitled to interim maintenance of 40% of last drawn wages. Hence, this Court is of the considered view that it is apt and appropriate 23 to remand the matter back to the Tribunal for adjudication afresh by reserving liberty to both parties to lead further evidence, if any.
Hence, the following:
ORDER i. Writ petition is hereby allowed.
ii. Order dated 13.04.2017 passed in
Spl.Apl.No.5/2015 is hereby set-aside and
I.A.No.1 filed under Section 10(4) and
Section 11 of Industrial Disputes Act, 1947 read with Section 151 of Code of Civil Procedure (Annexure-'J') is hereby restored to the Industrial Tribunal, Mysore for adjudication afresh in the light of observations made herein above.
Ordered accordingly.
SD/-
JUDGE VMB