Karnataka High Court
The Management Of M/S Toyota Kirloskar ... vs Mr. Shivappa S Badagudra on 4 September, 2024
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NC: 2024:KHC:36147
WP No. 17324 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO. 17324 OF 2021 (L-RES)
BETWEEN:
THE MANAGEMENT OF M/S. TOYOTA KIRLOSKAR AUTO
PARTS PRIVATE LIMITED,
PLOT NO.21, BIDADI INDUSTRIAL AREA
BIDADI, RAMANAGARA DISTRICT,
BENGALURU - 562 109.
REPRESENTED BY ITS DEPUTY MANAGER
(HR AND ER) MR. VIJAY H. V.
...PETITIONER
(BY SRI. S.N. MURTHY, SENIOR ADVOCATE FOR
SRI. SOMASHEKAR, ADVOCATE)
AND:
MR. SHIVAPPA S. BADAGUDRA,
S/O SHANKARAPPA, PHC QRTS,
GURUDEVARAHALLI CHIKKANARASINAKERE (P),
MADDUR TALUK, MANDYA DISTRICT - 571 422.
Digitally signed by
MAHALAKSHMI B M ...RESPONDENT
Location: HIGH (BY SRI. ASHOK HARANAHALLI, SENIOR ADCOCATE FOR
COURT OF
KARNATAKA SRI. BHAT SHANKAR SHIVARAM, ADVOCATE FOR
SRI. MARUTHI REDDY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
22.07.2021 PASSED BY THE HONBLE ADDITIONAL INDUSTRIAL
TRIBUNAL IN SERIAL APPLICATION NO.41/2014 AT ANNX-J
GRANTING INTERIM RELIEF TO THE WORKMAN AT 50 PERCENT OF
HIS LAST DRAWN PAY OF RS.29,014/- FROM THE DATE OF
DISMISSAL THAT IS FROM 30.12.2014 TILL THE DISPOSAL OF THE
CASE AND PASS SUCH OTHER APPROPRIATE ORDERS AS DEEMED
FIT TO PASS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND
ETC.
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NC: 2024:KHC:36147
WP No. 17324 of 2021
THIS PETITION, COMING ON FOR DICTATION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL ORDER
The present petition by the management of M/s.Toyota Kirloskar Auto Parts Pvt. Ltd., questioning the legality and correctness of the order dated 22.07.2021, in Serial Application No.41/2014, granting interim relief to the workman at the rate of 50% of his last drawn pay of Rs.29,014/- from the date of dismissal dated 30.12.2014 till the disposal of the case.
2. The question that falls for consideration before this Court is, "Whether the granting of interim relief to the workman by the Industrial Tribunal is justified in the present facts and circumstances of the case?"
3. The workman was dismissed from service of the company on certain allegation of misconduct, industrial dispute was raised by the workman, pending adjudication in AID No.39/2014 before the Additional Industrial -3- NC: 2024:KHC:36147 WP No. 17324 of 2021 Tribunal, the petitioner-management filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act" for short) seeking approval of the dismissal order of the workman from his service, as he was the one of the concerned workman in the said dispute.
4. The Tribunal, on the fairness of domestic enquiry, by order dated 29.09.2018 held that the domestic enquiry conducted by the management was not fair and proper. The workman filed an application under Section 10(4) and Section 11 of the ID Act for granting interim relief at the rate of 100% as per the last drawn wages from the date of dismissal, till the disposal of the case. The workman contended that he was dismissed from service on 30.12.2014 without any valid and proper reason and with mala fide intentions. That the enquiry officer has not followed the principles of natural justice and he has not given reasonable opportunity to the workman to contest the matter, he was not permitted to -4- NC: 2024:KHC:36147 WP No. 17324 of 2021 cross-examine the management witness. The workman stated that he is not gainfully employed and prima facie case is established by the workman to grant an interim relief by way of interim protection of granting the wages during the pendency of the petition.
5. The management filed objections to the application, inter alia, denying the averments made in the application. The management stated that, they have followed the principles of natural justice and after affording sufficient opportunity to the workman, the enquiry was concluded. That the applicant workman has not made out Prima facie case for granting interim relief as the workman is gainfully employed.
6. The Tribunal by the impugned order, in light of the power conferred under Section 10(4) of the ID Act awarded 50% of the last pay drawn of Rs.29,014/- as an interim relief from 30.12.2014 till the disposal of the case. -5-
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7. Heard Sri S.N. Murthy, learned Senior Counsel appearing for Sri Somashekar, learned counsel for the petitioner, Sri Ashok Haranahalli, learned Senior Counsel for Sri Bhat Shankar Shivaram and Sri Maruthi Reddy, learned counsel for the respondent.
8. Learned Senior Counsel for the petitioner would contend that the order of the Tribunal in awarding interim relief, is without considering that the workman was dismissed from service of the petitioner-company for the charges of "deliberate go slow" during the period 11.02.2014 to 18.03.2014, disturbing the normal operation of the company and without considering the seriousness of the misconduct, the granting of interim relief pending disposal of Serial Application was not justified. Learned senior counsel for the petitioner would urge the following grounds:
(i) drawing the attention of this Court to the cross examination of WW1, learned Senior Counsel has submits that the workman has clearly admitted the unequivocal -6- NC: 2024:KHC:36147 WP No. 17324 of 2021 terms in his cross-examination, that he owns 2 acres of agricultural land which is cultivable, he is residing in his own house at Haveri, his wife is working as a nurse and inspite of categorical admission regarding earnings of the workman for his livelihood, the Tribunal, has erroneously on the assumption that the farmers would not be getting regular income to lead their life, has held that the respondent is entitled for interim relief.
(ii) Emphasizing that the workman is not entitled for interim relief when he is gainfully employed or has a source of income, reliance is placed on the decision of the Apex Court in the case of North-East Karnataka Road Transport Corporation vs. M. Nagangouda1 and submits that the workman has source of income from the agricultural pursuits to maintain himself and thus, the Tribunal is not justified in not considering the categorical admission of the workman about his source of income. 1 (2007) 10 SCC 765 -7- NC: 2024:KHC:36147 WP No. 17324 of 2021
(iii) That the interim relief granted by the Tribunal is to be equated to 17-B wages, which is not permissible until an award is passed, any relief of such nature would arise only when there is consideration on merits or when there is a direction for reinstatement.
(iv) The interim relief awarded by the Tribunal from the date of dismissal i.e., 30.12.2014 is illegal and unsustainable, domestic enquiry findings was passed on 29.09.2018 and interim relief if granted would be from the date of recording a finding on domestic enquiry and not from the date of dismissal. Reliance is placed on the decision of the Division Bench of this Court in the case of T. T. Ltd. Vs. R. Subramaniam and Ors.2
9. Per contra, Sri Ashok Haranahalli, learned Senior Counsel for the respondent would urge on he following grounds:
(i) The fairness of domestic enquiry being held to be fair and proper, and the same is not being questioned 2 WP No.693/1990.-8-
NC: 2024:KHC:36147 WP No. 17324 of 2021 by the management before this Court, the interim relief granted by the Tribunal is to be equated with a subsistence allowance as the workman needs to be maintained during the enquiry of misconduct proceedings.
(ii) Once the domestic enquiry is held not to be fair and proper, the entire matter is open for jurisdiction before the Tribunal, and till such time, the proceedings are pending and the amount of subsistence allowance/interim relief to enable the workman to maintain himself and his family members cannot be denied.
(iii) That the workman does not cease to be a workman until and unless the Tribunal grants permission/approval to the management to dismiss the workman and the workman continues to be in employment.
(iv) That a dismissed workman whose dismissal was pending approval before the Tribunal under Section 33 is that the workman continues to be an employee during the period when the proceedings for approval of the dismissal was pending consideration before the Tribunal and that -9- NC: 2024:KHC:36147 WP No. 17324 of 2021 pendency of proceedings for approval does not put an end to the relationship of master and servant between the management and the workman and setting aside of the domestic enquiry by the Tribunal would inescapably revert the position of the workman vis-a-vis the management to that of a servant and master.
10. Reliance is placed on the decision of the Apex Court in the case of Fakirbhai Fulabhai Solanki vs. Presiding Officer and another3(Fakirbhai Fulabhai Solanki).
11. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
12. The power of the Tribunal to grant interim relief is concerned, the law is no more a res integra in light of the decision of the Apex Court as early as in the year 1959 in the case of The Management of Hotel Imperial vs 3 AIR 1986 SC 1168.
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NC: 2024:KHC:36147 WP No. 17324 of 2021 Hotel Workers' Union4(The Management of Hotel Imperial) and paragraph Nos.21, 22 and 23 has held as under:
"21. After a dispute is referred to the tribunal under S. 10 of the Act, it is enjoined on it by S. 15 to hold its proceeding expeditiously and on the conclusion thereof submit its award to the appropriate government. An "award is defined in S. 2
(b) of the Act as meaning "an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto". Where an order referring an industrial dispute has been made specifying the points of dispute for adjudication, the tribunal has to confine its adjudication to those points and matters incidental thereto; (S. 10 (4)). It is urged on behalf of the appellants that the tribunal in these cases had to confine itself to adjudicating on the points referred and that as the question of interim relief was not referred to it, it could not adjudicate upon that. We are of opinion that there is no force in this argument, in view of the words "incidental thereto" appearing in S. 10 (4). There can be no doubt that if, for example, question of reinstatement and/or compensation is referred to a tribunal for adjudication, the question of 4 AIR 1959 SC 1342
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NC: 2024:KHC:36147 WP No. 17324 of 2021 granting interim relief till the decision of the tribunal with respect to the same matter would be a matter incidental thereto under S. 10 (4) and need not be specifically referred in terms to the tribunal. Thus interim relief where it is admissible can be granted as matter incidental to the main question referred to the tribunal without being itself referred in express terms.
22. The, next question is as to, how the tribunal should proceed in the matter if it decides to grant interim relief. The definition of the word "award" shows that it can be either an interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus it is open to the tribunal to give an award about the entire dispute at the end of all proceeding. This will be final determination of the industrial dispute referred to it. It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto, In either case it will have to be published as required by S. 17. Such awards are however not in the nature of intent relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand is granted under the power conferred on the
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NC: 2024:KHC:36147 WP No. 17324 of 2021 tribunal under S. 10 (4) with respect to matters incidental to the points of dispute for adjudication.
23. It is however urged on behalf of the appellants that even if the tribunal has power under S. 10 (4) of the Act to grant interim relief of the nature granted in these cases it can only do so by submitting an award under S. 15 to the appropriate government. Reference in this connection is made to sections 15, 17 and 17-A of the Act."
13. It is urged by the learned senior counsel appearing for the petitioner that even if the Tribunal had power under Section 10(4) of the ID Act to grant an interim relief of the nature granted in this case, it can only do so by submitting an award under Section 15 to the appropriate Government and a reference in this connection made to Sections 15, 17 and 17A.
14. The Apex Court, in the case of The Management of Hotel Imperial stated supra, has considered the point raised by the petitioner, "whether the industrial Tribunal competent to grant interim relief without making an interim award which should have been
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NC: 2024:KHC:36147 WP No. 17324 of 2021 published". The Apex Court has laid down the ratio in two paragraphs as to the scope of power of the Tribunal under sub-section 4 of Section 10.
(i) That the Tribunal has power to make an interim award on point of dispute referred to it for adjudication, on a matter incidental to the main question. Such an interim award involves determination of the point of dispute in respect of which an interim award is made in view of the definition of the award in Section 2(b) of the Act.
(ii) It has also the power to grant appropriate relief in view of Section 10(4) of the ID Act, as the matter incidental to the point of dispute referred for adjudication.
(iii) The interim relief could be granted as the matter incidental to the main question is separate and distinct from the interim order, for, in an order granting interim relief, the Tribunal does not make any determination of any point of dispute or a point incidental there to.
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(iv) Interim order incorporates determination of some points of dispute, not all, referred for adjudication or of some question incidental thereto, it decides the industrial dispute in part.
15. The Apex Court in the case of The Management of Hotel Imperial stated supra, the Tribunal has power to grant interim relief under Section 10(4) of the Act. The Apex Court, in the case of Fakirbhai Fulabhai Solanki has held that the workman does not cease until the Tribunal grants permission/approval under Section 33 to dismiss the workman and the management dismisses the workman pursuant to such permission and an order of suspension by itself does not put an end to the employment. The Apex Court held that the workman continues to be an employee during the period of suspension and it is for this reason ordinarily, the various standing orders in force in several factories and industrial establishments provide for the payment of subsistence allowance which is normally less
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NC: 2024:KHC:36147 WP No. 17324 of 2021 than the usual salary and allowance and that are paid to the workman concerned. The Apex Court further observed, that an order of suspension no doubt prevents the employee from rendering his service but it does not put to an end to the relationship of master and servant between the management and the workman. The Apex Court further observed that no amount is paid during the pendency of such an application, it has to be held that the workman concerned has been denied a reasonable opportunity to defend himself in the proceedings as the granting of amount by way of subsistence allowance is to maintain himself and the members of his family and also to meet the expenses of the litigation before the Tribunal.
16. Perusal of the impugned order cannot hold this Court for a long time to arrive at a conclusion that the Tribunal has considered various aspects about the agricultural activities and the problems faced by the farmers, and merely earning some amount for the livelihood cannot be held that the workman is gainfully
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NC: 2024:KHC:36147 WP No. 17324 of 2021 employed in order to deny the interim relief. The Tribunal having held that the domestic enquiry conducted is not fair and proper, once the domestic enquiry is held invalid, the Tribunal is required to hold fresh enquiry, meaning whether the workman is guilty or not is to be enquired by th Tribunal, and during the pendency of the enquiry against the workman is deemed to be under suspension and entitled for subsistence allowance.
17. Insofar the contention of the learned Senior Counsel for the petitioner that the interim relief has to be awarded from the date of the findings recorded in domestic enquiry, the said contention is not acceptable for the simple reason that the Division Bench of this Court in the Management of Kanoria Industries Limited, vs. Bagalkot Cement Company Workers and others ILR 2001 Kar. 890 has held that that award of interim relief in an industrial adjudication is not dependent on the finding on the validity or otherwise of the domestic enquiry, it has to be awarded notwithstanding the finding
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NC: 2024:KHC:36147 WP No. 17324 of 2021 with reference the validity of domestic enquiry and there is no necessity for the Labour Court to differ consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry and interim relief is being granted to a worker for the purpose of maintaining him during the period the Tribunal adjudicates the dispute and till the Court finally adjudicates the issue. In the instant case, the findings on the domestic enquiry has been passed in the year 2018 and the application was filed by the petitioner on 16.01.2015 and the Tribunal has ordered interim relief from 30.12.2014 the date of dismissal. The application for interim relief was filed in the year 2015, the Tribunal after considering the issue of domestic enquiry in the year 2018 as thereafter, considered the interim relief application which this Court is of the considered view that the Labour Court/Tribunal whenever an application is filed by a workman seeking interim relief, the said application has to be considered first and thereafter consider the other issues as the interim relief which is sought by a workman is for the purpose of
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NC: 2024:KHC:36147 WP No. 17324 of 2021 maintaining him and his family members during the period the Tribunal adjudicates the dispute and a final adjudication is arrived on the said issue. The workman has been deprived of his relief for nearly five years till the findings on domestic enquiry was considered and thus, the Labour Court/Tribunal should bear in mind that there is no necessity for the Labour Court/ Tribunal to defer consideration of the application for grant of interim relief till it enters a finding on the domestic enquiry. Since the workman filed the interim application on 16.01.2015, the workman is entitled for interim relief from the date of his application and not from the date of findings recorded on the domestic enquiry and accordingly, this Court pass the following:
ORDER i. Writ petition is allowed in part. ii. The impugned order passed by the Labour Court stands modified to the extent of holding that the respondent-workman is
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NC: 2024:KHC:36147 WP No. 17324 of 2021 entitled for interim relief of 50% of his last pay drawn of Rs.29,014/- from 16.01.2015.
Sd/-
(K.S. HEMALEKHA) JUDGE AT List No.: 1 Sl No.: 14