Karnataka High Court
M/S Tata Coffee Limited vs Sri P A Ganapathy on 11 October, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.14298 OF 2013 (L-TER)
Between:
M/s. Tata Coffee Limited
(earlier known as
M/s. Consolidated Coffee Limited)
Polibetta 571 215
Kodagu District
Represented by its
Manager - IR
Sri. Vijay Karnad
...Petitioner
(by Shri. Somashekar, Advocate)
And:
Sri P.A.Ganapathy
S/o Sri P.G. Aiyappa
Aged Major
Junior Assistant
Coffee Pool Section
Kushalnagar Works Unit-II
Kudige 571 232
Kodagu
...Respondent
(by Shri H. Pavan Chandra Shetty, Advocate)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned order dated
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16th March 2013 in Serial Application No.1 of 1993 passed by the
Industrial Tribunal, Mysore at Annexure-G; and etc.
In this writ petition, arguments being heard, reserved for
orders on 03rd April 2018, coming on for pronouncement this
day, the court made the following:
ORDER
The petitioner had issued charge sheet on 05th September 1992 for certain misconduct on the respondent. The charges are, that while the respondent was working as such, had made a false and fictitious entry in RR-28 Register maintained by him on 19th March 1992 by incorporating the name of Mr. K.C. Ponnappa for having received 200 bags of Robusta Cherry Coffee vide TP3 No.0078115 and the Lorry No.CTX 5696. By virtue of the said act it was alleged that the respondent was responsible for causing loss to the tune of Rs.67,280/- to the petitioner. Since the respondent had denied the charges, enquiry was initiated against him, in which, he had participated. After completion of enquiry, it was found that the charges against the respondent are proved and after having issued second show-cause notice, the respondent was dismissed from service by order dated 26th May 1993. Since the dispute was pending in ID No.285 of 1990 3 before the Industrial Tribunal, Mysore (for short hereinafter referred to as 'the Tribunal'), the petitioner made an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short hereinafter referred to as 'the Act') seeking approval for dismissal of respondent. In the application made, the petitioner had specifically mentioned that one month's salary was sent by Money Order and the copy of the Money Order receipt No.1824 was enclosed along with the approval application. The said application was numbered as Serial Application No.1 of 1993 with a prayer for approval of action of dismissal of the respondent from service. The respondent made objections and in the objections he has denied the fact of having sent one month's salary in compliance of Section 33(2)(b) of the Act. While considering the Serial Application No.1 of 1993, the Tribunal framed an issue as to whether the petitioner proves that the domestic enquiry against the respondent has been held in fair and proper manner. Though the respondent made objections to the said application and participated in the proceedings, at no point of time, he has denied in respect of one month's salary having sent through money order. The issue 4 framed as regards conducting of domestic enquiry in a fair and proper manner is concerned, the Tribunal by its order dated 22nd November 2011 held that the Domestic Enquiry conducted against the respondent is fair and proper and proceeded further to consider whether the application made for approval of dismissal of respondent from service is to be considered or not. By its order dated 16th March 2013, the application made by the petitioner for approval has been dismissed. Against the same this petition is filed.
2. The learned Counsel appearing for the petitioner submitted to set aside the impugned order. He submitted that the finding of Tribunal that the petitioner had not proved about the compliance of Section 33(2)(b) of the Act in respect of payment of one month's salary through Money Order, on the face of it, is an error. It is clearly stated that copy of the receipt No.1824 for having sent the money order of one month's salary was enclosed along with the application. The copy of receipt for having made money order of Rs.1,552/- is also available on record of the Tribunal. It is further submitted that the 5 respondent, in the statement of objections, had not denied or disputed about sending of money order in receipt No.1824 indicated in the dismissal order or in the approval application. Hence, there was no occasion for the Tribunal to disbelieve the same. Therefore, he submitted that the Tribunal had committed an error which is apparent on the face of it. The observation made by the Tribunal, as submitted by the learned Counsel is, that there is no whisper in the evidence of AW1 and AW2 about the non-payment of one month's salary in compliance of Section 33(2)(b) of the Act. It is also submitted that the respondent has examined himself and he has also not denied in evidence and when there is no dispute and denial, it is to be taken that one months' salary has been sent through Money Order, is accepted by the respondent. Hence, it is submitted to set aside the order of the Tribunal.
3. On the contrary, the learned counsel appearing for the respondent-workman submits that it was the respondent's specific case that the petitioner had not complied with the provisions of Section 33(2)(b) of the Act. This part has been 6 examined by the Tribunal and had rightly dismissed the application. Hence he submitted that no error can be found in the order passed on Serial Application and accordingly writ petition is to be dismissed.
4. Heard the learned counsel for the parties. While dismissing the Serial Application No.1 of 1993 the Tribunal framed the following issues for its consideration:
1. Does applicant prove validity of domestic enquiry held against respondent?
2. Does applicant further prove, compliance with requirements of section 33(2)(b) of the Industrial Disputes Act?
3. Is applicant entitled to the approval as sought for?
5. In respect of the first point, it was already answered in the affirmative by its order dated 10th November 2011. Then the Tribunal proceeded further to answer issues No.2 and 3.
6. The Tribunal has followed the judgment of the Hon'ble Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMI 7 VIKAS BANK LTD. v. RAM GOPAL SHARMA reported in AIR 2002 SC 643 and further observed that Section 33(2)(b) of the Act the approval, before dismissal or discharging the workman during pendency of industrial dispute between the employer and the workman, is mandatory. Further, it is also mandatory on the part of the employer to pay one month's salary to the workman and to file an application to the authority seeking approval for dismissal of the workman. This is what is canvassed both by the petitioner as well as the respondent. The Tribunal, by its order dated 10th November, 2011 held that the domestic enquiry held is fair and proper. The next question is whether the filing of approval application is in compliance of Section 33(2)(b) of the Act, which is an inbuilt mechanism? For which Exhibit A18 dated 26th May 1993 is the basis wherein it has been stated that one month's salary was sent to the respondent by means of Money Order. But the said order is silent as to whether the dismissal order was served on the respondent and as regards the payment of one month's wage. It is further observed that if at all the petitioner has sent one month's wage by means of money order, nothing prevented the petitioner to produce either receipt or 8 acknowledgement. Though the petitioner has examined witnesses AW1 and AW2 in support of their contention, the said management witnesses have not whispered anything about the compliance of Section 33(2)(b) of the Act. The respondent had examined RW1 and RW2 and were subjected to cross- examination and nothing is elicited in their cross-examination as regards payment of one month's wage in compliance of Section 33(2)(b) of the Act. Under the circumstance, it has been held that the petitioner has failed to prove the compliance of mandatory provision of Section 33(2)(b) of the Act and the observation made by the Hon'ble Supreme Court. On these two counts, the Tribunal dismissed the application filed by the petitioner seeking approval. The reasons assigned by the Tribunal is on the basis of the evidence elicited by the applicant and also the respondent as also it is a failure on the part of the petitioner in not deposing anything in respect of payment of wages and also not eliciting anything in the cross-examination. Hence, the Tribunal has dismissed the Serial Application No.1 of 1993 by its order dated 16th March 2013.
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7. The Tribunal has dismissed the application based on the materials produced and the same has to be accepted when there being no material made available by the petitioner as to Tribunal having committed an error on the face of it. The Tribunal is the right forum to consider the case of the petitioner since it had the benefit of recording evidence on behalf of both the parties and also peruse the documents and on the basis of the evidence and documents, if a decision is arrived at by the Tribunal then that shall be accepted unless and until it is demonstrated before this Court that blatantly the Tribunal has not exercised its power or has exceeded its power. As held by the Hon'ble Supreme Court in JAIPUR ZILLA SAHAKARI BHOOMI VIKAS BANK LIMITED (supra) compliance of Section 33(2)(b) of the Act is mandatory and non compliance thereof would meet dismissal of the application as has rightly been done in the present case.
8. In the case of JASBIR SINGH v. STATE OF PUNJAB reported in 2006(8) SCC 294, it is expressed that the subordinate judiciary who directly interact with the parties in the course of the proceedings and therefore, it is no less important 10 that their independence should be protected effectively to the satisfaction of the litigants. In the course of the judgment, it is observed thus:
"So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants. The independence of the judiciary has been considered as a part of the basic structure of the Constitution and such independence is postulated not only from the Executive, but also from all other sources of pressure."11
9. In the case of D. N. BANERJI v. P. R. MUKHERJEE AND OTHERS reported in 1953 SCR 302 it is observed that interference by High Courts must be restricted to the cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes.
10. The Hon'ble Supreme Court in the case of M/S ESSEN DEINKI v. RAJIV KUMAR reported in (2002)8 SCC 400, in the course of the judgment, has observed thus:
"Needless to record that there is total unanimity of judicial precedents on the score that error must be that of law and patently on record committed by the inferior Tribunal so as to warrant intervention it ought not to act as a Court of appeal and there is no dissention or even a contra note being sounded at any point of time till date. Incidentally, the illegality, if there be any, in an order of an inferior Tribunal, it would however be a plain exercise of jurisdiction under the Article to correct the same as otherwise the law Courts would fail to subserve the needs of the society since illegality cannot even be countenanced under any circumstances."12
11. In the light of the judgments referred to above, I have given a serious thought to the submissions made by the learned Counsel for the parties. The submission of the learned counsel for the petitioner is that if there were denial either in the objections filed or in the objections raised in respect of service of dismissal order or about payment of one month's wages through money order, then the petitioner would have proved it. Since they have not denied, the question of proving does not arise, cannot be accepted. With regard to this submission, the judgment of the Hon'ble Supreme Court in the case of JAIPUR ZILLA SAHAKARI BHOOMI VIKAS BANK LTD. (supra) wherein it states that there shall be compliance of Section 33(2)(b) of the Act which is to be read as mandatory and there cannot be any scope for relaxation. It is a pre-condition for the application filed by the petitioner seeking approval of dismissal order.
12. Though the management has examined two witnesses and also the respondent has examined one witness in the absence of any material either in the chief examination or any suggestions made in the cross-examination, it cannot be said 13 that petitioner has made out a case for interference under Article 227 of the Constitution of India. After examining the case of the petitioner in all these angles, I find that the order of the Tribunal is justified, the same is sound and proper and there is no ground for interference.
13. Petition accordingly stands dismissed.
Sd/-
JUDGE lnn