IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NO.1539 OF 2019 (L-RES) BETWEEN:
BEML CANTEEN KARMIKARA SANGHA (R) NO.LIG 86, GROUP 1, KHB COLONY HOOTAGALLY BELAWADI POST MYSURU – 570 018 REPRSENTED BY ITS GENERAL SECRETARY …APPELLANT AND:
(BY SRI K.SUBBA RAO, SENIOR COUNSEL FOR SRI V.S. NAIK, ADVOCATE) 1. BEML LIMITED BELAVADI POST MYSURU – 570 018 REPRESENTED BY ITS ASSISTANT MANAGER (HR) SHRI K.P. VENKATESH BABU 2. THE DEPUTY CHIEF LABOUR COMMISSIONER (C) BENGALURU – 560 003 ... RESPONDENTS (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR SRI K.S. BHEEMAIAH, ADVOCATE FOR R-1; SRI N.KUMAR, CGC FOR R-2) *** THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION NO.39614/2018 (L-RES) DATED 04.04.2019 AND FURTHER BE PLEASED TO DISMISS THE WRIT PETITION NO.39614/2018.
THIS APPEAL IS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGEMENT
Heard the learned Senior counsel appearing for the appellant.
2. By the impugned order, the learned Single Judge has set aside the order passed by the Deputy Chief Labour Commissioner (Central), Bengaluru on an application made by the appellant. By the said order, the Deputy Chief Labour Commissioner (Central), Bengaluru granted permission to the General Secretary of the Appellant to file prosecution case against the Executive Director of the first respondent for non- implementation of the award dated 22nd April 2003 of the Central Government Industrial Tribunal-cum-Labour Court, Bangalore.
3. The said award was modified by the Division Bench of this Court. A Contempt Petition was filed by the appellant before the Division Bench of this Court alleging breach of the order passed by the Division Bench. The contempt petition was disposed of by dropping the proceedings by recording satisfaction that the first respondent has paid salary to the workmen in accordance with the directions issued by this Court. The question is in the light of the findings recorded by the Division Bench that the order of this Court has been complied with, the order of the Deputy Chief Labour Commissioner granting permission to prosecute, could be said legal.
4. The learned Senior counsel appearing for the appellant, firstly submitted that in the Contempt Petition filed by the appellant there is no conclusive finding recorded. Secondly, he submitted that permission has been granted to the appellant to file prosecution in accordance with law and in particular, under Section 34 of the Industrial Disputes Act, 1947 (for short ‘the ID Act’). He submitted that the contempt proceeding has nothing to do with the power exercised by the Deputy Chief Labour Commissioner (Central), Bengaluru under Section 34 of the ID Act. Even if the respondents are prosecuted on the basis of the order under Section 34 of the ID Act, the issue of the legality and validity of the order granting permission remains open, which could be adjudicated by the respondent in the criminal prosecution. He relied upon the fact that when the order of the Deputy Chief Labour Commissioner (Central), Bengaluru, which was impugned in this writ petition, was passed, the Contempt Petition was pending and was not yet decided. Relying upon the decision of the Division Bench of this Court in the case of F.K.MENZLIN vs B.P.PREMAKUMAR, W.P. No.13129 of 1982 decided on 2nd April 1990, he submitted that the issue whether sanction/permission under Section 34 of the ID Act has been legally granted could be always adjudicated before the Criminal Court. He submitted that there is a material on record to show that the award of the Tribunal was not implemented fully and in fact, the finding in Paragraph No.5 of the Deputy Chief Labour Commissioner (Central), Bengaluru is that the first respondent has not come out with clarity whether all the benefits available to the workmen have been extended. He submitted that there was no reason for the learned Single Judge to interfere when the Contempt Petition was pending.
5. We have given careful consideration to the submissions.
6. Application under Section 34 of the ID Act was made by the appellant alleging non-compliance of the award dated 22nd April 2003. The award was challenged by the first respondent by filing a writ petition before the learned Single Judge. The award was partly modified by the learned Single Judge. The appeals were preferred against the order passed by the learned Single Judge filed by the appellant and by the first respondent. The Division Bench by the order dated 12th April 2015 modified the order passed by the learned Single Judge. Special Leave Petition filed by the first respondent against the order of the Division Bench was dismissed.
7. Perusal of the order dated 16th January 2019 passed by the Division Bench of this Court in CCC No.1340 of 2018 clearly shows that the grievance of the Complainant (present appellant) was that the direction issued by the Division Bench in the order dated 12th March 2016 has not been complied with. The Division Bench quoted the order of the learned Single Judge which was modified by the Judgment and Award dated 12th March 2015 by the Division Bench. In paragraph No.4 of the said judgment and order in the Contempt Petition, the Division Bench has gone into the nature of the directions issued in the Judgment and Award as modified by the Division Bench. Ultimately, in paragraph No.8, the Division Bench held thus:
“In the circumstances, we find it appropriate to drop the contempt proceedings as we are satisfied that the accused has paid the salaries to the workmen in accordance with the direction issued by this Court. If the workmen or complainants are still dissatisfied or have got any grievance with regard to payment or if there is any arrears of amount or benefits to be granted to the workmen, liberty is reserved to them to seek the same in accordance with law and particularly having regard to Section 33 (C) of the Act.”
(underline supplied) 8. Thus, there is an observation by the Division Bench that it was satisfied that the first respondent has paid the salaries to the workmen as per the directions issued by Division Bench under order dated 12th March 2015. As noted above, the award, on the basis of which the application for permission under Section 34 of the ID Act was made, was modified by the learned Single Judge and the order of the learned Single Judge was modified by the aforesaid order of the Division Bench dated 12th March 2015.
9. Now coming to the order of the Deputy Chief Labour Commissioner (Central), Bengaluru impugned before the learned Single Judge, it is true that when the said order was passed, the aforesaid Contempt Petition was not decided. The said order refers to the order passed by the learned Single Judge and the Division Bench. In paragraph No.5, there is a finding recorded that award is modified partly without extending welfare benefits and other allowances on par with the unskilled workmen of the first respondent. The finding recorded by the Division Bench of this Court in Contempt Petition filed by the appellant is that salaries have been paid as per the order of the Division Bench dated 12th March 2015.
10. The learned Single Judge in Paragraph No.10 has referred to the aforesaid order of the Division Bench dated 16th January 2019. In the light of the order of the Division Bench dated 16th January 2019 and in particular, paragraph No.8, which we have quoted above, it is not possible to find fault with the order of the learned Single Judge passed in exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India.
11. So far as the decision in the case of F.K.MENZLIN, supra, is concerned, the first prayer before the Division Bench was for declaring the prosecution under Section 29 of the ID Act, as illegal. There was a challenge to the order of the Commissioner of Labour and also to the Constitutional validity of sub-Section (1) of Section 34 of the ID Act. This was a case where the prosecution was already launched and prayer in the petition for quashing the same was dismissed. It is in that context, the observations in Paragraph No.11 of the judgment were made regarding powers of the Criminal Court.
12. The learned Single Judge in Paragraph No.11 of the impugned order has observed thus:
“Further more, as rightly pointed out by the learned Senior Counsel representing the petitioner-company, Section 34 of the Act provides that cognizance of any offence punishable under the Act or of the abetment of any such offence can be taken on the basis of a complaint. However, the penalty for breach of an award, as provided under Section 29 of the Act, could be taken only when, it is found beyond doubt that there is breach of an award. As noticed above, the question as to whether the petitioner-company has complied with the award or not, is yet to be determined. That is the reason why this Court and the Division Bench granted liberty to the respondent-union to approach the competent authority by making a appropriate application under Section 33(C) of the Act, where such question could be determined and decided by the Labour Court after going through the evidence that is required to be placed before the Labour Court.”
(underline supplied) As a liberty has been granted to make an application under Section 33 (C) of the ID Act, the issue whether there is a compliance with the order of the Division Bench, remains open.
13. In the circumstances, as the position stands, it is difficult to find fault with the impugned order of the learned Single Judge.
14. The appeal, accordingly, dismissed.
Pending application do not survive for consideration and it is accordingly, dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK