IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.33605/2018 (L RES) BETWEEN THE MANAGEMENT OF NTTF INDUSTRIES PVT. LTD., 23/24, II PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058 REP. BY ITS DEPUTY MANAGING DIRECTOR MR. R.RAJAGOPALAN.
(BY SRI J PRADEEP KUMAR, ADV.) AND MR ASWATHAMA NO.265, 2ND MAIN, 2ND CROSS, NELAGADARANAHALLI, BANGALORE-560 073.
(BY SRI G.S.NAVEEN KUMAR, ADV. FOR SRI S B MUKKANNAPPA, ADV. FOR C/R.) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 15.03.2018 PASSED BY THE INDUSTRIAL TRIBUNAL, BANGALORE IN SERIAL APPLICATION NO.9/2011 AT ANNEXURE-C.
THIS WRIT PETITION COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and learned counsel for the respondent.
2. Though the matter is listed for consideration of Interlocutory Application for a direction to the petitioner/employer to pay wages in compliance of Section 17-B of the Industrial Disputes Act (hereinafter referred to as ‘the Act’ for short), with the consent of learned counsels for the parties, the petition is taken up for disposal.
3. Petitioner is before this Court being aggrieved by the order passed on Serial Application No.9/2011 marked as Annexure-C to the writ petition dated 15.03.2018.
4. The case of the petitioner is that the respondent was appointed as a Helper Trainee on 01.06.1982 and the service of the respondent-workman came to be confirmed on 01.02.1984. That on 12.09.2009, the respondent-workman along with another employee by name Dayanandasagar brought outsiders on to the factory premises and abused and assaulted the Divisional Manager by name Sri.Ramesh Pai. That the Management issued a Show Cause Notice and also placed him under suspension on receipt of the complaint from the said Divisional Manager and the respondent- Workman in his reply has denied the allegation levelled against him.
5. The petitioner thereafter, proceeded to appoint one Santhosh Narayan as the Enquiry Officer and Enquiry commenced on 14.11.2009 and was concluded on 28.12.2009. The respondent walked out of the enquiry during the middle of the second date of hearing after submitting a protest letter. That the enquiry was concluded after four sittings and the Enquiry Officer by report dated 27.02.2010 found the workman guilty of the misconduct alleged in the charge sheet. That the petitioner on receipt of the report, issued second Show Cause Notice on 31.03.2010 and the explanation of the respondent-Workman was sought by 07.05.2010. The petitioner not satisfied with the reply received by the respondent was pleased to pass the order dated 10.12.2011 dismissing the workman from service.
6. That the petitioner was found guilty of the misconduct as per clause 31.19, 31.39 and 31.40 and as an Industrial Dispute in I.D.No.37/2008 was pending before the Industrial Tribunal. The petitioner preferred Serial Application No.9/2011 and that at the time of disposal, the petitioner had paid entire sum due to the respondent under the Demand Draft dated 08.02.2011.
7. It is submitted by the learned counsel for the petitioner that on submission of the application, a preliminary issue regarding fairness of Domestic Enquiry conducted against the respondent was framed and the same was held in favour of the petitioner. That the Labour Court while holding that the Domestic Enquiry has been conducted in a fair and proper manner has recorded that the respondent-workman having walked out of the enquiry could not be complained of lack of opportunity to participate in the proceedings and rejected the contention of the workman that he was unable to participate in the future dates as he was not notified of the dates on which the proceedings came to be posted and that the Tribunal while disposing of the application itself has appreciated the very same issue in a different light. In fact, only on this ground the writ petition is canvassed.
8. It is also not in dispute that the petitioner- employer has not been paying wages as mandated under Section 17-B of the Act and there is a blatant violation of the statute by the petitioner, and on that ground alone the writ petition is liable to be dismissed. He would contend that the finding rendered by the Tribunal while disposing of the application is contrary to its earlier observation. Hence, as the reasoning of the Tribunal is contrary to its earlier version on the preliminary issue, the same is perverse and the order stands vitiated. He who seeks must do justice.
9. It is not in dispute that the issue of non- participation or walk out by the workman during the course of enquiry has been appreciated differently while determining the issue as to whether the Domestic Enquiry has been conducted in a fair and proper manner? The Tribunal has disbelieved the version of the workman that he was not aware of the next date of enquiry and held that the version of the workman is required to be disbelieved as he himself deposed in his evidence about the further dates of proceedings and that he had full knowledge of the dates of enquires. It is also not in dispute that the Domestic Enquiry has been conducted in a fair and proper manner. It cannot be disputed that the application could also be rejected on the ground that the enquiries are vitiated by unfair labour practice which amounts to victimization. The Tribunal while disposing of the application observed in Paragraph Nos.20, 21 and 22 as under:
“20. The evidence of MW.1 and MW.2 can be considered carefully, because they are the officials of the applicant management. Whether there is element of bias is there or not is also to be considered. Therefore with great care, the evidences of MW.1 and MW.2 deposed in the domestic enquiry are to be weighed and sifted. Where upon considering regarding whether the Enquiry Officer report is perverse or not, the evidence led in the domestic enquiry also to be re- appreciated. In the domestic enquiry, the opposite party had requested to reopen the case and permit to participate in the domestic enquiry proceedings and permit to cross-examine MW.1 and MW.2 and said representation is given as per Ex.D.20. The applicant management had not disputed this fact that the opposite party had filed representation for reopening of the domestic enquiry, permitting him to participate in the enquiry and permitting to cross- examine MW.1 and MW.2, but the application management has not allowed the application and also the Enquiry Officer had not allowed the application to reopen the domestic enquiry. Therefore when the opportunities sought for by the opposite party workman to participate in the domestic enquiry, but without allowing him and just based on the unchallenged evidence if the report is submitted holding guilt is proved, that is amounting to victimisation.
21. MW.1 had stated that regarding the incident, police were informed and police have arrived at the spot and then outsiders left the factory premises. Every factory premises has security arrangement and without entering in the register maintained in the office of the Security Guard, no person can enter inside the factory premises. Where it is the evidence of MW.1 Ramesh Rao that other 20 outside persons have come along with opposite party, then there must have been entry in the register kept in the security guard office or kept along with security personnel before entering the factory premises. But the applicant management has not produced the said register to show who are the 20 outside persons entered the premises. Regarding 20 outside persons have entered the factory premises, there is no evidence by the applicant management from the evidence discussed above. Therefore the evidence of MW.1 is not found to be believable and therefore believing the evidence of MW.1 and MW.2 by the Enquiry Officer is nothing but perverse approach.
22. It is also the evidence of MW.1 that he was assaulted by the opposite party and Dayanandasagar and other 20 outside people, then certainly said Ramesh Pai must have received injuries. It is the allegation that Ramesh Pai was beaten by more than 20 persons, but not by one or two persons. In such circumstances, Mr.Ramesh Pai must have received severe injuries, but there is no evidence by Ramesh Pai that he had gone to hospital for taking treatment for the assault injuries. Therefore in this regard, the evidence of MW.1 and MW.2 are not found to be believable. Therefore relying on the evidence of MW.1 and MW.2 holding guilty that the charges against the opposite party are proved is nothing but perverse approach.”
10. Firstly, the Tribunal on re-appreciation of the evidence has found that rejection of the application for reopening of the enquiry amounts to victimization. It is not in dispute that within a short span of time, after closure of enquiry, the application has been made by the workman i.e., even prior to passing of the order of dismissal. Hence, inference that there is denial of an opportunity by the Enquiry Officer and that the same amounts to victimization, cannot be faulted with. The finding rendered by the Tribunal is after appreciating the evidence of MW.1 and MW.2.
11. Learned counsel for the petitioner is unable to demonstrate any fact which would contradict the finding rendered by the Tribunal. The other inference drawn by the Tribunal, which is seriously attacked by the learned counsel for the petitioner, is that if 20 persons had assaulted the complainant, he would have definitely suffered injuries and in the instant case, there are no medical records much less any FIR registered with the Jurisdictional Police.
12. Learned counsel for the petitioner would contended that the complainant had merely stated that the respondent-workman along with other employee had brought the outsiders and that it was the respondent and other employee alone assaulted the complainant-the Divisional Manager.
13. Perused Annexure-A to the writ petition. The charges alleged against the respondent reads as under:
“On 12th September 2009 at about 12.05 pm, you along with Mr. W.Dayanandasagar brought outsiders and assaulted Mr. Ramesh Pai, Divl. Manager – HR and also threatened him”
The charge is one of assault. It was for the petitioner to prove the said charge.
14. As could be seen, there is no material except for the oral testimony of two other employees of the Management. It is seen that the complainant has not been examined before the Industrial Tribunal. It is submitted that the complainant was MW.1 in the enquiry which was concluded ex-parte. The matter having been seriously contested before the Tribunal, the petitioner ought to have made available the witness for cross-examination. On the other hand, they have attempted to screen the witness from any cross-examination by the workman before the Tribunal. Hence, this Court finds no ground or reason which warrants interference with the order of the Industrial Tribunal.
Accordingly, the petition being devoid of merits stands rejected.
Sd/- JUDGE VM CT:HR