Karnataka High Court
Devanur Grama Seva Sahakari Sangh ... vs Virupaxayya And Ors. on 27 June, 2001
Equivalent citations: [2002(94)FLR223], ILR2001KAR4839, 2002(2)KARLJ6, 2001 AIR - KANT. H. C. R. 2339, (2002) 2 KANT LJ 6, (2002) 1 SERVLR 690, (2002) 1 LABLJ 891, (2002) 1 CURLR 890
JUDGMENT Ashok Bhan, J.
1. Appellant which is a registered society under the Karnataka Co-operative Societies Act, 1959 (for short, 'the Act') being aggrieved by the order passed by the Single Judge in W.P. No. 10204 of 1997, dated 14-9-1998 wherein the Single Judge has upheld the order of the Labour Court in KID No. 85 of 1991 passed by the Labour Court, Hubli, has come up in this appeal.
2. Shortly stated the facts are:
Respondent-workman (hereinafter referred to as the respondent') was appointed as a clerk with the appellant in the year 1981. By an order dated 11th of March, 1991, the service of the respondent was terminated by giving one month's notice. Respondent raised an industrial dispute under Section 10(4-A) of the Industrial Disputes Act (Karnataka Amendment), 1947 (for short, 'the I.D. Act'). Service of the respondent was terminated on the ground that he was a chronic absentee and that he was irregular in the performance of his duty. It was done by passing a resolution. Respondent assailed the order terminating his service on the ground that the same was stigmatic in nature. On the charge of remaining absent from duty without sanctioned leave his service could not be terminated without issuance of a show-cause notice and holding of an enquiry. That the order was passed in violation of the principles of natural justice. Another ground taken was that his service was terminated without payment of retrenchment compensation provided under Section 25-F of the Act. It was further stated that the appellant-Society had been merged with Shirur Grama Seva Sahakari Sangha, Shirur and the said Sangha was impleaded as respondent 2.
3. Appellant who was respondent 1 before the Labour Court filed his statement of objections denying the averments made in the claim application. It is pleaded that the averments made in the claim application were frivolous and vexatious; that the management had paid one month's salary in lieu of notice; that the management had conducted enquiry against the respondent and thereafter took the decision to terminate the service of the respondent as the charges levelled against him were found to be proved; that he was not serving to the satisfaction of the appellant; that the appellant had suffered due to his insincerity; that High Court of Karnataka had stayed the order of merger of the appellant-Society with respondent 2 and the appellant was functioning independently as previous; that the respondent had accepted the order of termination passed by the respondent and received all monetary benefits without protest or complaint; and that he had no legal ground to approach the Court. It was prayed that the claim petition be dismissed with costs.
4. In spite of notice respondent 2 remained absent before the Labour Court. He was placed ex parte. On these pleadings the following issues were framed:
"(i) Whether the Management of the respondent is justified in retrenching the claimant from service?
(ii) If not, to what relief the said workman is entitled to? (iii) What award?"
5. Labour Court returned findings on issue Nos. (i) and (ii) against the appellant. It was held that the respondent had put in more than 240 days of service. His service could not be terminated without payment of retrenchment compensation as provided under Section 25-F of the Act. That the order terminating the service was stigmatic in nature. The same had been passed without issuing a show-cause notice and holding an enquiry. The same had been passed in violation of the principles of natural justice. Order of termination was set aside and the appellant was directed to reinstate the respondent in service with full back wages and other benefits.
6. Being aggrieved the appellant filed the writ petition which has been dismissed by the Single Judge by the impugned order. Learned Single Judge agreed with the findings recorded by the Labour Court. It was held that the respondent had put in more than 240 days of service and his service could not be terminated without payment of retrenchment compensation provided under Section 25-F of the Act; that the order was stigmatic in nature and such an order could not be passed without issuance of a show-cause notice and holding of an enquiry. The same had been passed in violation of principles of natural justice. Another contention raised before the Single Judge was that the appellant-Society had been merged with the second respondent. It was argued that it was for the second respondent to contest the matter. Learned Single Judge rejected this contention holding that the plea raised before him was against the pleadings specifically raised before the Labour Court. Before the Labour Court it had been contended that the merger had been stayed by the High Court and the appellant-Society (petitioner) was functioning independently. On these facts the appellant could not be given any relief on this account. The award had been made both against the appellant as well as respondent 2 and if there was inter se dispute between the appellant and respondent 2 they can work it out independently.
7. Counsels for the parties have been heard.
8. The pleas raised before us except the one to which we advert shortly, are the same which had been raised before the Single Judge.
9. We agree with the view taken by the Labour Court and the Single Judge that the respondent had put in more than 240 days of continuous service and his service could not be terminated without payment of retrenchment compensation. The service of the respondent had been terminated on the ground that he was a chronic absentee. Remaining absent from duty without sanction of leave is a misconduct. Admittedly, no enquiry was instituted or conducted to provide an opportunity to the workman to defend his case. Respondent's service could not be terminated on the ground of misconduct without affording him due opportunity to defend himself. The order passed was illegal and unjustifiable being in violation of principles of natural justice.
10. It is not open to the appellant to urge that the liability should now be fixed on second respondent. Appellant in its pleadings before the Labour Court had specifically stated that the merger had been stayed by the High Court and the appellant was functioning independently. Respondent 2 did not appear before the Labour Court in spite of service. It was proceeded ex parte. The award has been made both against the appellant as well as respondent 2, Burden lies on them to implement the award. If there is any inter se dispute between the appellant and the second respondent, they can work it out amongst themselves. The respondent-workman cannot be made to suffer on this account.
11. Another point which was neither raised before the Labour Court nor before the Single Judge has been raised before us. Relying upon a Division Bench judgment of this Court in Veerashaiva Co-operative Bank Limited, Bangalore v Presiding Officer, Labour Court, Bangalore and Others, it was contended that the employees of the Co-operative Society whose services were terminated could not raise a dispute under the Industrial Disputes Act. The only remedy available to them is to maintain a dispute under Section 70(2)(d) of the Karnataka Co-operative Societies Act. In the said case the employer in its statement of objections, had taken a specific ground that the petition was not maintainable. That a dispute before the Labour Court could not be raised. The dispute, if any, could only be raised under Section 70(2)(d) of the Karnataka Co-operative Societies Act.
12. In this case, since the point was not raised either before the Labour Court or the Single Judge, the Counsel for the appellant cannot now be permitted to raise the same before us. No doubt the Division Bench upon consideration of certain judgments came to the conclusion that when a comprehensive procedural remedy is available under the Co-operative Societies Act, the jurisdiction of the Labour Court is excluded. It was accordingly held that the jurisdiction of the Labour Court was excluded and the dispute before the Labour Court was not maintainable. The Division Bench had also referred to and relied upon the judgment of the Supreme Court in Sagarmal v District Sahakari Ken-driya Bank Limited, Mandsaur and Another. It was referred before us as well.
13. The Supreme Court in a recent judgment in Agra District Co-operative Bank Limited v Prescribed Authority, Labour Court, Uttar Pradesh and Others, held that the doors of Labour Court could not be shut. The facts of the said case were, writ petitioners-respondents 2 and 3 before the Supreme Court were selected by the Selection Committee constituted by the Uttar Pradesh Co-operative Societies Employees Service Regulations, 1975 as in force then, as clerks and cashiers. Appointment letters were issued to them on 28th of April, 1980. They jointed the duty. By a resolution made on 9th of May, 1990, the said recruitment was cancelled. Employees filed the writ petition before the High Court challenging the action of the Managing Committee of the Agra District Co-operative Bank Limited, who was appellant before the Supreme Court. High Court declined to interfere with the action and asked the parties to work out alternative remedies under the law. Thereafter a dispute was raised before the Labour Court and the Labour Court declined to interfere with the matter on the ground that the matter had been decided by the High Court. Employees again approached the High Court for appropriate relief and the High Court set aside the award made by the Labour Court and remitted the matter to the Labour Court for fresh consideration on merits of the matter. Labour Court examined the matter on merits and came to the conclusion that the termination of the services of respondents 2 and 3 was invalid and directed their reinstatement with certain directions in relation to back wages. Employer filed writ petition raising three contentions. One of them being that the Labour Court did not have the jurisdiction to decide the matter. The dispute could only be raised under Section 70 of the Uttar Pradesh Co-operative Societies Act in relation to termination of services of the employees by the Society. This contention was negatived by the Supreme Court by observing thus:
"7. So far as the third contention is concerned regarding jurisdiction of the Labour Court, we make it clear that it was not the first round of litigation that the parties had gone before the Labour Court, and at that stage if the Labour Court had no jurisdiction, that point should have been raised at once when the matter came up before the High Court when the matter was remanded to the Labour Court to decide on merits of the case. Apart from that this Court in Co-operative Central Bank Limited v Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and Others, considered the identical provisions arising under the Andhra Pradesh Co-operative Societies Act and held that Labour Court has jurisdiction in such matters. The position is that when a question of employment arises, certainly it cannot be said that the doors of the Labour Court are shut. It is possible that in certain cases Section 70 of the Uttar Pradesh Co-operative Societies Act may be attracted. If parties avail of a remedy in one of the jurisdictions, that proceeding must be pursued to its logical end and should not be given up in the middle and start another proceeding under another enactment. That would be a wholesome rule to be followed rather than to state that one on the other Tribunal has no jurisdiction.
8. In this matter none of the contentions need deeper examination for reasons to be stated now. In this case appointments had been made as early as on April 28, 1980. Though the services were terminated the parties concerned invoked the jurisdiction of the Labour Court and the Labour Court directed their reinstatement and they were reinstated from the date of the termination itself. In these circumstances they must be deemed to be in service for more than 20 years now and to disturb their service at this stage would be harsh and inhuman".
14. The rule laid down by the Supreme Court in the judgment referred to would be fully applicable to the facts of the present case. The point that the Labour Court did not have the jurisdiction to entertain the petition, was neither pleaded nor argued, either before the Labour Court or before the Single Judge. Respondent had invoked the jurisdiction of the Labour Court and the Labour Court directed his reinstatement from the date of termination itself. Respondent was appointed in the service of the appellant in the year 1981. He will be deemed to be in service over 20 years now and to disturb his service at this stage, in the words of the Supreme Court would be 'harsh and inhuman'. Otherwise also Supreme Court has clearly ruled that the doors of the Labour Court in dispute arising between a co-operative society and its employees cannot be shut.
15. For the reasons stated above, we do not find any merit in this petition and dismiss the same with no order as to costs.