Karnataka High Court
M/S Yashaswi Fish Meal And Oil Company vs Smt Prameela on 26 October, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO.46268/2017(L-RES)
BETWEEN :
M/s. Yashaswi Fish Meal and Oil Company
No.9, 9-184B, Post: Pithrody
Udyavara, Udupi Taluk,
Udupi District-574 118.
Represented by it's Managing Partner
Sri Sadhu Salian, Age: 50 years.
... Petitioner
(By Sri K.A. Ariga, Advocate)
AND :
Smt. Prameela
D/o Krishnappa Suvarna
Aged about 29 years
Meenakshi Nilaya
Pithrody Post-574 118.
Udyavara, Udupi Taluk,
Udupi District.
... Respondent
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This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
award passed by Labour Court, Mangalore in IDA
No.11/2015 dated 31.7.2017 as per Annexure-G
This Writ Petition coming on for preliminary hearing
this day, the Court made the following:-
ORDER
The petitioner, M/s.Yashaswi Fish Meal and Oil Company, has challenged the legality of the award dated 31.7.2017, passed by the learned Labour Court, Dakshina Kannada, Mangaluru, whereby the learned Labour Court has set aside the termination order dated 10.5.2015 passed against the respondent-workman, and has directed that the respondent-workman be reinstated in her original post with all back wages and consequential benefits.
2. Briefly the facts of the case are that on 1.9.2008, the respondent-workman, Mrs. Prameela, had joined the services of the petitioner-Firm as a workman. On -3- 1.8.2003, she was promoted to the post of Supervisor. On 2.4.2015, she was asked to work in another Department of the petitioner-firm. Although no written order was issued to her, she was informed by the partners of the petitioner, namely Uday Kumar Salian, Yakoob Fakir Mohammed Khan, and Firoz Ahamed to work in another Department. However, when she reported to the other Department, she was informed that she would not be assigned any work, and she would be made to sit idle. The above named persons not only physically abused her, but also humiliated her in front of her other colleagues. On 18.4.2015, when she went to the workplace, the above named persons tried to forcibly obtain a resignation letter from her. They further threatened her that in case she does not submit her resignation letter, they would falsely implicate her in a criminal case. She further alleged that these three persons, named above, had committed acts of sexual assault on her for the last two to three years. However, -4- she tolerated all their exploitative acts as her family was dependent on her income and on her. She further claimed that her e-mail was blocked illegally by these persons. Since she had been sexually harassed, physically abused and humiliated, she filed a criminal complaint before the jurisdictional police. However, notwithstanding her allegations, the police had called the accused persons and informed them about the allegations. Since the accused persons denied the allegations, the police treated her complaint as being of "civil nature". The police asked her to approach the Civil Court.
3. On 10.5.2015, without holding a proper enquiry and without following the mandatory provisions of the Industrial Disputes Act, 1947 ('ID Act' for short), the respondent was served with an order of termination, ostensibly on the ground that she was absent unauthorizedly for about one month. Since the -5- respondent was illegally terminated, she filed her claim statement, under Section 10(4A) of the ID Act, before the learned Labour Court. The petitioner filed the counter-statement and denied the allegations made by her. Although the workman was examined as AW.1, since she stopped attending the proceedings, she could not be cross-examined. Although the petitioner submitted their objections to the claim statement, they did not submit any evidence, orally or documentary, to buttress their case. After assessing the evidence which was available on record, the learned Labour Court, passed the impugned award. Hence, this petition before this Court.
4. Mr. K. A. Ariga, the learned counsel for the petitioner, has drawn the attention of this Court to the order-sheet of the learned Labour Court. He has pleaded that according to the order-sheet dated 19.7.2017, the evidence of the workman was taken as "nil", and was -6- closed; the petitioner was directed to produce its evidence on 20.7.2017. However on 20.7.2017, the petitioner (as the respondent before the learned Labour Court) was absent, therefore, even the petitioner's evidence was closed, and was taken as "nil". Hence, the petitioner was not given ample opportunities to produce the relevant evidence to buttress its case.
5. Secondly, relying on the case of KSRTC vs. Smt.Lakshmidevamma & Another [AIR 2001 SC 2090], the learned counsel has pleaded that ample opportunity should be given to the Management to produce its evidence.
6. Thirdly, the burden of proof was upon the workman to establish that her termination was an illegal one. However, as the workman was not subjected to cross-examination, she had failed to discharge the burden. Thus, the learned Labour Court was not justified in relying on the documentary evidence, produced by the -7- workman, in concluding that the termination was an illegal one. Therefore, the impugned award deserves to be interfered with by this Court.
7. Heard the learned counsel for the petitioner, and perused the impugned award.
8. A bare perusal of the order-sheet of the learned Labour Court clearly reveals that the petitioner was granted an opportunity to submit its evidence on 20.7.2017. However, it failed to do so as there was no representation from the side of the petitioner. Thus, the learned Labour Court had taken the evidence as "nil". Moreover, even on 22.7.2017 the petitioner did not attend the proceedings. In case the petitioner was aggrieved by the fact that its evidence had been closed at the first instance, the least that was expected of the petitioner was to be present before the learned Labour Court on the next date, i.e., on 22.7.2017, and to file a proper application for re-opening of the evidence. But -8- even when such an opportunity did exist on 22.7.2017, the petitioner chose not to appear before the learned Labour Court, and to seek an opportunity to produce its evidence. Interestingly from 20.7.2017, till the passing of the award on 31.7.2017, the petitioner chose to maintain a studied silence with regard to its grievance that it was being deprived of its right to produce its evidence. It is only after the impugned award has been passed, the petitioner has suddenly woken up to the fact that it has been deprived of an opportunity to submit its evidence. Since the petitioner has slept over its rights, and has failed to protect its interest, it cannot possibly plead that an opportunity to produce its evidence was not given.
9. In the case of Smt.Lakshmidevamma and Another (supra), the Hon'ble Supreme Court has clearly opined as under:
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"The right of a management to lead evidence before the Labour Court or Industrial Tribunal in justification of its decision under consideration by such Tribunal or Court is not a statutory right. This is actually a procedure laid down by the Supreme Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman. In view of the object, the management has to exercise its right of leading fresh evidence at the first available opportunity, i.e., it has to reserve its right to do so in the application made by it under Section 33 itself or in the objection that the management has to file to the reference made under Section 10 of the Act. The right cannot be exercised at any time thereafter during the proceedings before the Tribunal/Labour Court."
(Emphasis added)
10. Thus, the burden of furnishing its oral and documentary evidence is at the first available opportunity. Admittedly the first available opportunity
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was granted to the petitioner on 20.7.2017, which was ignored by it. Even on 22.7.2017, ample opportunity did exist to file an application for re-opening of the case. But for reasons best known to the petitioner, it chose not to avail this opportunity. Therefore, the learned Labour Court was certainly justified in not giving any further opportunity to the petitioner to submit its evidence.
11. A bare perusal of the impugned award clearly reveals that the learned Labour Court was well aware of the fact that although the workman had examined herself as a witness, she could not be subjected to cross- examination as she failed to appear before the Labour Court after her examination-in-chief was recorded. Therefore, the learned Labour Court has eschewed her oral testimony. However, the learned Labour Court has relied on the documentary evidence which was produced by her, namely, Exs.A 1 to A 4.
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12. Moreover, in the objections filed by the petitioner, in paragraph-8, they have stated that the applicant was terminated by the order dated 10.5.2015 on the ground of unauthorized leave from 13.4.2015 to 9.5.2015. Therefore, they have clearly admitted that no enquiry was held prior to the termination order.
13. A bare perusal of the documents submitted by the workman clearly reveals that she not only proved the illegal termination order, but also produced the copy of the complaint filed by her before the police. A bare perusal of the complaint filed by the workman clearly shows that she had made allegations against the three partners of the petitioner-firm, namely, Mr.Uday Kumar Salian, Mr.Yakoob Fakir Mohammed Khan, and Mr.Firoz Ahamed. She had not only alleged that she was orally humiliated, but also physically abused and also subjected to sexual harassment. She has also produced an endorsement made by the Circle Inspector of Police,
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wherein the police had clearly opined that since Mr.Uday Kumar, one of the accused had denied the allegations made against him and the other two partners, the case was of a "civil nature". Therefore, the police had disposed of her complaint and directed her to correspond with the concerned authority. Considering these three documents, it is amply clear that the workman had established the fact that her termination was an illegal one. For, the preponderance of probabilities also point to the fact that since she had filed a criminal complaint against the three partners of the Firm, the petitioner wanted to get rid of her by anyway which available. Therefore, the workman was terminated from her service by the order dated 10.5.2015, without following any procedure established by law. Hence, clearly it is a case of victimization of a woman worker. Thus, the learned counsel for the petitioner is unjustified in claiming that the workman has failed to discharge the burden of proof. Cogent evidence does exist in the form of documentary
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evidence to reveal the fact that the workman has been terminated from her service, and she has been victimized for her courage to speak against partners who have subjected her to humiliation, physical and sexual abuse. Thus, the third contention raised by the learned counsel for the petitioner is clearly unaccepted.
For the reasons stated above, this Court does not find any merit in the present writ petition. Accordingly, it is hereby dismissed.
Sd/-
JUDGE *ck/-