Karnataka High Court
Sri M H Mahabaleshwar vs The Joint Registrar Of on 8 January, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
®
DATED THIS THE 8TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.46061/2012 (S-RES)
BETWEEN:
Sri M.H. Mahabaleshwar,
S/o. late Mailarappa,
Aged about 61 years,
Senior Assistant,
(Now illegally dismissed from Service),
The Davangere Urban Co-operative
Bank Limited, Head Office,
Post Box No.217, P.B. Road,
Davangere - 577 002,
& R/at "Pavan Krupa", Door No.1657/2,
11th Cross, Sri Anjaneya Badavane,
Davangere - 577 004.
...PETITIONER
(By Sri N. Devaraj for
M/s. M.S. Anandaramu & Associates, Advs.)
AND:
1. The Joint Registrar of
Co-operative Societies Limited,
Urban Co-operative Bank Federation Cell,
K.H. Road, Shanthinagar,
Bangalore - 560 027.
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2. The Disciplinary Authority
and Executive Committee,
The Davangere Urban Co-operative
Bank Limited, Head Office,
Post Box No.217, P.B. Road,
Davangere - 577 002,
Rep. by its President.
3. The Davangere Urban Co-operative
Bank Limited, Head Office,
Post Box No.217, P.B. Road,
Davangere - 577 002,
Rep. by its General Manager.
...RESPONDENTS
(By Sri Raghavendra G. Gayatri, HCGP for R1;
Sri T. Basavaraj, Adv. for R2 & R3;)
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to set aside the order
dated 28.9.2012, made in Appeal No.558/2010 marked at
Annexure-H issued by the Karnataka Appellate Tribunal
and to dismiss the appeal filed by respondent No.3.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
This writ petition is directed against the Judgment dated 28.09.2012 in Appeal No.558/2010 passed by the Karnataka Appellate Tribunal (for short 'the Tribunal') at Bangalore, whereby, the Tribunal, after setting aside the Order/Award dated 06.10.2010, passed by the Joint 3 Registrar of Co-operative Societies, Karnataka State Co- operative Urban Banks Federation Ltd., Bangalore - 27 (for short, 'the Arbitrator') in Dispute No.JRD/UBF/538/2008- 09, remanded the case back to the Arbitrator, for reconsideration.
2. Facts in brief are:
The petitioner was an employee of the 3rd respondent - The Davangere Urban Co-operative Bank Ltd., Davanagere - 577 002. Petitioner was dismissed from service by the 3rd respondent on 02.05.2008. Petitioner raised a dispute under S.70(2)(d) of the Karnataka Co-operative Societies Act, 1959 (for short, 'the Act'), before the Arbitrator. The 3rd respondent filed counter and contested the dispute. In the course of enquiry by the Arbitrator, petitioner got himself examined as PW-1 and marked Exs.P1 to P13. For the 3rd respondent, its General Manager deposed as RW-1 and Exs.R1 to R27 were marked. The Arbitrator, by an Order/Award dated 06.10.2010, allowed the dispute and 4 set aside the impugned order of dismissal from service dated 02.05.2008 and directed the 3rd respondent to reinstate the petitioner into service and pay all consequential benefits. Feeling aggrieved, the 3rd respondent filed an appeal under S.105 of the Act, in the Tribunal. The appeal having been contested, after securing the record of the dispute from the Arbitrator and hearing the learned advocates who appeared for the parties, the Tribunal by its Judgment dated 28.09.2012, allowed the appeal and remanded the case back to the Arbitrator for reconsideration. Assailing the said Judgment, this writ petition has been filed.
3. Sri N. Devaraj, learned advocate, in support of the writ petition contended that the Tribunal was not justified in remanding the case back to the Arbitrator for decision. He submitted that the Tribunal has not kept in view Regulations 34 and 36 of the Karnataka Appellate Tribunal Regulations, 1979 (for short, 'the Regulations') and hence, interference is warranted. Per contra, Sri 5 T.Basavaraj, learned advocate for the 3rd respondent contended that the order of remand passed is perfectly in order and that the Tribunal after satisfying that, it is a case whereby, the parties should be given an opportunity of hearing in respect of the aspects of the case detailed in paras 10 to 14 of the Judgment and also the fact that an application filed seeking permission for production of additional evidence before the Tribunal, under Order 41 Rule 27 of CPC by the appellant was pending consideration, rightly remanded the case and therefore, no interference is called for.
4. The points raised by the Tribunal for consideration are the following:
(i) Whether the trial court has well appreciated the oral and documentary evidence available on record before the impugned order being passed?
(ii) If not, whether the matter needs to be remanded back?
(iii) What order?
At the outset, it is to be observed that, keeping in view the record of case and the appellate jurisdiction, the 6 Tribunal has posed unto itself the wrong points and arrived at a wrong answer.
5. According to the Tribunal;
(a) There is no frugal appreciation of oral and documentary evidence by the Arbitrator, whose findings are based upon surmises;
(b) The attitude of nitpick on the part of the Arbitrator in respect of technical defects without going in depth into the entire evidence available before him is not acceptable.
(c) The Arbitrator has not taken any pain in peeping into the report i.e., Ex.R27, with reference to the evidence available on record.
(d) The findings recorded by the Arbitrator indicates that he has not gone in depth to find out the fact as to whether the charges leveled against the employee in the second enquiry are proved or not.
(e) The Arbitrator has not recorded findings as to whether the Order dated 24.06.2000 based on first enquiry report deserves to be quashed or not.
The Tribunal held that the Arbitrator has not scrutinized the voluminous evidence readily available before him and that the appreciation of the oral and documentary evidence available on record is very much pivotal to come to a fair conclusion. It further held that the Award passed by the Arbitrator is wishy-washy. 7
6. To remand the case to the Arbitrator, the Tribunal has reasoned out as follows;
"It is the bounden duty of the Trial Court to appreciate the entire oral and documentary evidence available before it and if the same is not done by the Trial Court, the leading of voluminous evidence before it becomes infructuous. It is needless to say that the appeal is to be disposed off on merits only when there is an appreciation of the entire oral and documentary evidence by the Trial Court and it is the duty of the appellate Court to remand the case to the Trial Court with a direction to dispose off the matter after appreciating the entire oral and documentary evidence available before it if such appreciation is missing in the impugned order for the reason that only when the entire oral and documentary evidence on record is well appreciated by the trial court, then only the appellate court will be in a better position to judge as to whether the judgment of the trial court is in accordance with law or as to where exactly the trial court has slipped."
By holding that the impugned Award is cryptic and not sustainable under law, without touching the merits of the case and / or the application filed by appellants to receive the additional evidence, the case was remanded to the Arbitrator for fresh disposal.
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7. Perused the writ record. The Tribunal was exercising power as the Appellate Court and hence, it was open to the Tribunal to enter into not only question of law but question of fact as well. It is trite that an appeal is continuation of an original proceeding. An appeal, thus, is a re-hearing of the main case and the Tribunal can re-appraise, re-appreciate and review the entire evidence
-oral and documentary, and can come to its own conclusion. The Tribunal has not considered the evidence brought on record of the dispute by both the parties.
8. Dispute filed by the petitioner under S.70(2)(d) of the Act was decided by the Arbitrator, by passing an award in exercise of the power conferred under S.71 of the Act. The Award was questioned before the Tribunal, by filing an appeal under S.105 of the Act. S.5 of the Karnataka Appellate Tribunal Act, 1976, is with regard to the powers of the Tribunal. In exercise of the power under S.15 of the Act, the Regulations have been framed, with the previous sanction of the Government. Chapter 9 VII of the Regulations, contain the provisions relating to hearing and production of additional evidence. Regulation 33 provides for hearing of the matter on the day fixed for hearing or any other day to which the hearing may be adjourned. Regulation 34 shows that the hearing of an appeal or petition shall generally be on the entire case except when the Bench directs the parties to address arguments in regard to limitation, maintainability or such other grounds, when it considers that the matter can be disposed of on such grounds only. Regulation 36 makes it clear that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, except as provided thereunder. Regulation 37 is with regard to the course of action which the Tribunal can adopt, wherever additional evidence is directed or allowed to be produced.
9. The Tribunal has observed that the case being an old one is required to be decided with expedition. The findings recorded by the Tribunal would indicate that there 10 is voluminous evidence readily available for deciding of the case. According to the Tribunal, the Order passed by the Arbitrator being 'cryptic' was not sustainable. The Tribunal neither appreciated the evidence available on record of the dispute nor found any insufficiency of evidence to decide the controversy between the parties to the lis. The Award passed in the dispute was set aside and the case was remanded with a direction to the Arbitrator, to decide the case afresh, "after appreciating the entire oral and documentary evidence available on record and after both the parties being heard by giving the opportunity to them, keeping in view the observations made."
10. The question for consideration is, whether it is necessary to keep the impugned remand order undisturbed?
11. The petitioner was dismissed from service by the 3rd respondent on 02.05.2008. Assailing the punishment order of dismissal, a dispute was filed under S.70 of the Act, on 05.08.2008, before the Arbitrator. Counter statement was filed by the employer on 11 15.12.2008. During the enquiry of dispute, both the parties led evidence - oral and documentary. The Arbitrator passed the Award on 06.10.2010. The Award was questioned by the 2nd and 3rd respondents, by filing an appeal on 04.12.2010. The appeal was decided by the Tribunal on 28.09.2012.
12. The appellate power of remand ought not to be exercised lightly. It shall not be exercised when there is sufficient evidence to decide the case. Order 41 Rule 24 of Civil Procedure Code, 1908 being relevant, the same reads as follows:
"Where evidence on record sufficient, Appellate Court may determine case finally. - Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce Judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the Judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
13. The impugned judgment appears to have been passed by the Tribunal by keeping in view the power of the Appellate Court under Order 41 Rules 23 or 23A of CPC. The Award put in challenge in the appeal, undisputedly, 12 was not one passed upon a preliminary point. Hence, the provision under Rule 23 of Order 41 of CPC was not applicable. The Tribunal has not recorded a finding that, a re-enquiry in the matter by the Arbitrator is necessary. Hence, it could not have invoked the power of remand under Order 41 Rule 23A of CPC. Merely because the Tribunal considered that the Arbitrator has not appreciated the entire evidence brought on record by the parties and that the Order/Award is cryptic, the Judgment of remand was passed. The approach to the matter by the Tribunal is erroneous and view taken is perverse and illegal.
14. In the case of UMA Vs. N.V. RAJACHARI, ILR 2010 KAR 3078, considering the provisions under Order 41, Rules 23 to 25, it was held as follows:
" 19.... If the plaintiffs have not produced relevant evidence or the Trial Court has not correctly appreciated the evidence, it is for the Appellate Court to do its duties, keeping in view the provisions under Rules 25, 27, 29 and 31 of Order 41 CPC.
(emphasis supplied) 13
15. The remand of a case leads to necessary delay and causes prejudice to the parties to the lis. It is trite that an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. When the evidence is available, the Tribunal should decide the appeal one way or the other. The Tribunal having noticed that the Arbitrator has not appreciated the voluminous evidence readily available before him, the record of the case from the Arbitrator having been received, the Tribunal could have considered all the aspects of the case put forth by the parties and, considered whether the Order/Award passed by the Arbitrator ought to be confirmed or reversed or modified. The Tribunal could have easily considered the oral and documentary evidence of the parties and finally decided the controversy between the parties. I am, therefore, of the view, that the remand of the case by the Tribunal is totally unjustified and unwarranted. The impugned Judgment of the Tribunal is tainted with serious legal infirmities and is founded on a legal construction which is wholly wrong. 14
In the result, the writ petition is allowed and the impugned Judgment is quashed. The appeal is restored. The Tribunal is directed to decide the appeal expeditiously and within a period of four months from the date of appearance of the parties. The parties are directed to appear before the Tribunal on 28.01.2013 and receive further orders.
No costs.
Sd/-
JUDGE sac*