Karnataka High Court
Mohammed Nayazulla vs The Hassan District Central on 2 April, 2014
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 2nd DAY OF APRIL 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NO.291 OF 2014 (S-DIS)
BETWEEN :
MOHAMMED NAYAZULLA
S/O ABDUS SHAKUR
AGE: 59 YEARS
SR. ASST. (SUSPENDED)
R/A SHANTHINAGAR
3RD CROSS, BAGUR ROAD
CHANNARAYAPATNA - 573 116
HASSAN DISTRICT ... PETITIONER
(BY MISS S.MUBARAK BEGUM, ADV.)
AND :
1. THE HASSAN DISTRICT CENTRAL
CO-OPERATIVE BANK LTD.
HASSAN, REP. BY ITS
MANAGING DIRECTOR
B.M.ROAD
HASSAN - 573 201
2. THE REGISTRAR
FOR CO-OPERATIVE SOCIETIES
INFANTRY ROAD
BANGALORE - 560 001 ... RESPONDENTS
(M/s. LEX PIONEERS, ADVS.
SRI.SAMPATH, ADV. FOR R1
SMT.M.S.PRATHIMA, HCGP FOR R2)
---
2
This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to issue a writ
in the nature of certiorari quashing the impugned order
passed by the Hon'ble Tribunal in Appeal No.788/2011
dated 21.11.2013 at Ann-A setting aside the order
passed by the Joint Registrar of Co-operative Societies
and etc.
This petition coming on for Preliminary Hearing in
'B' Group this day, the court made the following :
ORDER
The petitioner, who was an employee of respondent No.1, having been dismissed from service, questioned the order of dismissal, initially in WP No.3540/2006, which was withdrawn on 14.12.2009 with liberty to approach the jurisdictional authority, later filed a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 (for short, 'the Act'). The dispute having been contested, after enquiry, having been allowed by an award dated 26.7.2011, was questioned by respondent No.1 in Appeal No.788/2011 under Section 105 of the Act before the Karnataka Appellate Tribunal. The said appeal having been allowed and the award impugned in the appeal having 3 been set aside and the case having been remanded to the Arbitrator for fresh trial with a direction to give sufficient opportunity to the parties to contest the matter, by a judgment dated 21.11.2013, this writ petition was filed to quash the said judgment.
2. Ms.S.Mubarak Begum, learned advocate, in support of the prayer in the writ petition, contended that the Tribunal was unjustified in remanding the case back to the Arbitrator for fresh trial, without keeping in view of the Karnataka Appellate Tribunal Regulations, 1979 and hence, interference is called for.
3. Sri.Sampath, learned Advocate for respondent No.1, on the other hand, contended that the judgment of remand passed by the Tribunal is perfectly in order. He submitted that in the facts and circumstances of the case, the Tribunal is justified in remanding the dispute to the learned Arbitrator and no interference with the judgment of remand is warranted.
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4. One of the points raised for consideration by the Tribunal while passing the impugned judgment reads as follows:
"1. Whether the appellant proves that the 1st respondent has committed an error in passing the impugned order without considering the evidence placed by the appellant in support of the enquiry report by justifying the dismissal of the 2nd respondent?"
5. The points 1 and 2 raised were consolidated and answered by the Tribunal. Certain observations of the Tribunal in the impugned judgment are relevant to be noticed and the same read thus:
"The learned counsel for the appellant submits that the trial Court has not properly appreciated the documentary evidence placed before it. It is a fact that the trial Court has not discussed anything on the evidence placed by the appellant, but it has discussed about the enquiry report alone. We have already said that when the delinquent remained absent there is no need to keep the enquiry by giving long period. Therefore, it appears that the finding of the trial Court so far as enquiry report is 5 concerned is wrong one. The trial Court was expected to discuss about the evidence placed by the appellant bank."
Again, it has been held as follows:
"However, the trial Court passed the judgment without discussing anything on merits of the case. The trial Court has not said anything about the allegation leveled against the 2nd respondent, but allowed the dispute by discussing about the enquiry report. Therefore, we feel that the finding of the trial Court is not tenable unless it gives finding on the allegations leveled against the 2nd respondent. Therefore, we have considered that the matter has to be remitted back to the trial Court for reconsideration and re-appreciation of evidence adduced by the appellant. It means there is a need for interference in the finding of the trial Court which requires some more discussions on the actual dispute raised by the 2nd respondent."
(emphasis supplied)
6. In view of the rival contentions and the findings of the Tribunal, the point for consideration is: 6
Whether the judgment of the Tribunal in remitting the case to the Arbitrator was necessary?
7. In my view, the Tribunal should not, ordinarily, remand a case to the Arbitrator merely because the evidence placed on record by the parties was not discussed / appreciated. The reasoning part of the impugned judgment shows that on account of non- discussion of the evidence by the learned Arbitrator, brought on record of the dispute by the Bank, it was considered that the case has to be remanded back to the Trial Court for reconsideration and re-appreciation of evidence adduced by the Bank. The operative portion shows that the case was remanded to the Arbitrator for fresh trial with a direction to give sufficient opportunity to the parties to contest the case. The reasons and conclusion of the Tribunal, do not go with each other.
8. Merely because the evidence brought on record of the case by either of the parties was not discussed or 7 appreciated, a remand to the Arbitrator cannot be made, as such a remand, leads to unnecessary delay and causes prejudice to the parties to the dispute. When the material is available on record of the dispute which was summoned by the Tribunal, the Tribunal should have itself decided the appeal one way or the other, since it can appreciate various aspects of the case urged by the parties and consider whether the impugned award ought to be confirmed or reversed or modified. The Tribunal can consider the oral and documentary evidence brought on record of the dispute by the parties, more particularly, on account of the litigation which commences with the order of dismissal of 3.7.2006 has remained undecided, even till now.
9. In "M.H.MAHABALESHWAR v. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES in WP No.46061/2012 decided on 8.1.2013", in identical circumstances, it was held as follows:
"11. The petitioner was dismissed from service by the 3rd respondent on 02.05.2008.8
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 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 9 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, 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 10 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)
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 11 serious legal infirmities and is founded on a legal construction which is wholly wrong."
(emphasis supplied)
10. The impugned judgment, suffers from the same infirmity, as was pointed out in the order passed in the case of M.H.Mahabaleshwar, extracted supra. Hence, the impugned judgment being vitiated cannot be upheld.
In the result, petition is allowed. The impugned judgment is quashed. The appeal is restored for consideration and decision by the Tribunal. The petitioner and respondent No.1 are directed to appear before the Tribunal on 28.4.2014 and receive further orders. The Tribunal is directed to decide the appeal within three months' period from the date of first appearance of the parties.
No costs.
Sd/-
JUDGE RV