IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S CHAUHAN WRIT PETITION No. 45175/2017 (L-TER) BETWEEN:
The Management of M/s Powergear Ltd, Plot No. 15 & 16, 3rd Phase, Peenya Industrial Area, Bengaluru 560 058 Represented by its Chairman, Mr. X. Durairaj. … Petitioner (By Sri.S.N.Murthy, Sr. Advocate, for Sri K.R.Anand, Adv.,) AND:
Powergear Employees’ Union (R), No. 757, 2nd Main, Vijayananda Nagara, Nandhini Layout, Bengaluru – 560 094, Represented by its President. … Respondent (By Sri K.Subba Rao, Sr. Advocate, for Sri K.S.Subrahmanya, Adv.,) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned order Annex-T dated 26.8.2017 passed by the Industrial Tribunal, Bengaluru, in ID No. 129/2015 on I.A.No.7 and etc., This Writ Petition coming on for preliminary hearing this day, the court passed the following:
O R D E R The petitioner, The Management of M/s Powergear Limited, has challenged the legality of the order dated 26.8.2017 passed by the Industrial Tribunal, Bengaluru, whereby the learned Tribunal has granted an interim relief to sixteen employees whose rights is being canvassed by the respondent Employees’ Union. The learned Tribunal has directed the petitioner to pay 50% of the gross wages to each of the workmen from 1.4.2015, and also to pay 18% interest upon the arrears from 1.4.2015 till realization.
2. The brief facts of the case are, the petitioner allegedly entered into a transfer of management of the undertaking with M/s. Extraco Composites India (P) Limited on 10.3.2015. Subsequently, on 15.3.2015, the petitioner also had entered into a registered lease deed with M/s Extraco Composites India (P) Limited. On 1.4.2015, the services of the workmen working for the petitioner, including the sixteen respondents, were terminated after paying the compensation and taking note the case of retrenchment. However, while other workmen accepted the compensation, allegedly the sixteen respondents accepted the compensation but under protest. Subsequently, dispute arose between the workmen and the management of the petitioner. Therefore, on 17.8.2015, the Government referred two points of dispute before the learned Tribunal. The two points of reference are as under : -
1. Does president, Powergear Employees’ Union (Regd), No.757, 3rd Main, Vijayananda Nagar, Nandini Layout, Bangalore-560096, prove that the management of M/s Powergear Limited, plot No.15 and 16, Peenya Industrial Area, Bangalore-58 have with effect from 1.4.2015 closed their industrial establishment?
2. Whether the management of M/s Powergear Limited, No.15 and 16, Peenya Industrial Area, prove that they have transferred the Management in favour of M/.s Extraco Composites, Diamond Plaza, 995-P Second Floor, 12th Main Road, 2nd Avenue Annanagar, Chennai-600040, as per the agreement under Section 25FF of the ID Act, 1947, and that they have not closed their industrial establishment?
3. During the course of the proceedings before the Tribunal, on 16.11.2016, the respondent-Union filed an application seeking for interim relief for the sixteen workmen whose cause it was espousing. The petitioner filed objections to the said application. However, after hearing both the parties, by the impugned order dated 26.8.2017, the learned Tribunal allowed the application in the aforementioned terms. Hence, this petition before this Court.
4. Mr. S.N.Murthy, the learned Senior Counsel appearing for the petitioner, has pleaded that the learned Tribunal had framed four issues wherein issue No.1 was, whether the first party union has a prima facie case for considering I.A.No.7 for interim relief? Despite the fact that the said issue was framed by the learned Tribunal, the learned Tribunal has not given any judicial finding on the said issue. Thus, the learned Tribunal has failed to consider the existence of a prima facie case. Instead of appreciating the case, the learned Tribunal has merely gone on a tangent; it has opined that since the Industrial Disputes is a social piece of legislation, during the pendency of a dispute, the workman cannot be expected to contest the matter without the grant of an interim relief. Therefore, the interim relief needs to be granted. But relying on the case of TEKNIC EUCHNER ELECTRONICS PRIVATE LIMITED vs SHENKARAVVA D.G. AND OTHERS, (W.P.Nos. 49990-50015/2015 decided by this Court on 16.2.2016), the learned counsel has pleaded that it was imperative for the learned Tribunal to discuss the existence of a prima facie case, prior to granting the interim relief to the respondent workmen. However, the learned Tribunal has failed to do so.
5. Secondly, although the case was referred to the learned Tribunal on 17.8.2015, although the application seeking interim relief was filed on 16.11.2016, the learned Tribunal has directed that the arrears of 50% salary shall be paid from 1.4.2015, i.e., the date on which the services were terminated by the petitioner. According to the learned counsel, the said arrears could only be paid from the date the application was filed, and not from any date anterior to it. Therefore, the impugned order deserves to be interfered with by this Court.
6. On the other hand, Mr. Subba Rao, the learned Senior Counsel appearing for the respondent, submits that the learned Tribunal could not have gone into the merits of the case. Secondly, the petitioner had merely submitted the lease deed dated 15.3.2015. They have not submitted the agreement of transfer of Management of undertaking dated 10.3.2015. According to the learned Senior Counsel, the agreement of transfer of Management is an unregistered document. Therefore, the same could not have even been submitted by way of evidence. Moreover, according to the learned Senior Counsel, the said document is not even genuine. Thus, according to the learned senior counsel, it is not a case of transfer of undertaking, but is a case of closure. Since the procedure for closure of undertaking has not been followed, the learned Tribunal was justified in directing the payment of 50% of the salary by way of interim relief to the workmen. Thus, the learned senior counsel has supported the impugned order.
7. Heard the learned Senior Counsel for the parties and perused the impugned order.
8. Undoubtedly, the provisions of the Industrial Disputes Act are social-piece of legislation. Therefore, the provisions need to be applied as liberally as possible. For the very intention of the Act is to do socio-economic justice to the weaker sections of the society, namely the labourers. However, while keeping this in mind, the requirement of law cannot be forgotten. Needless to say, while granting an interim relief, the existence of a prima facie case has to be seen. After all, an interim relief cannot be granted without a judicious application of mind to the facts and circumstances of the case.
9. In the case of SAMPAT B.G. -VS- STATE OF WEST BENGAL AND OTHERS (2000-I-LLJ-565), a Full Bench of the Hon’ble High Court of Calcutta has observed as under :
“17. There cannot, therefore, be any doubt that once an interim relief is prayed for, the tribunal has to apply its mind as regard existence prima facie case. What would be the nature of the prima facie case in such a situation is one of the questions which also arises for our consideration.
18. It has been submitted by the learned counsel appearing on behalf of the workmen that as the appropriate Government itself considers the dispute before making an order of reference, the same itself would constitute a prima facie case. We cannot accept such a submission. The appropriate Government while making an order of reference, exercises an administrative power. It is concerned as regard existence of a dispute or an apprehended dispute. It cannot enter into the merit of the matter. A reference is made only for an adjudication on the merit of the matter. (See : Eastern Distillers) (supra). Thus, reference by the appropriate Government itself cannot constitute a prima facie case in favour of the workman. It is thus, obligatory on the part of the Tribunal prima facie to consider the merit of the cases of the respective parties as also the nature of dispute upon taking into consideration the relevant materials therefor. The question as to whether in a fact situation a workman is entitled to any interim relief or not will also be a relevant consideration.”
10. The said case is also been relied upon by this Court in the case of Teknic Euchner Electronics (supra).
11. Thus, it was imperative for the learned Tribunal to consider the existence of a prima facie case before granting any interim relief to the respondent.
12. However, a bare perusal of the impugned order clearly reveals that although the learned Tribunal had framed issue No.1 to see whether a prima facie case exists or not in favour of the workmen, but the said issue has not been decided by the learned Tribunal. The learned Tribunal has merely taken the ambit and scope of the Act as a guideline, and has granted the interim relief in favour of the respondent. Therefore, the learned Tribunal has missed the wood for the trees. Since the learned Tribunal has failed to exercise the minimum that is required of the learned Tribunal, this Court has no other option but to set aside the impugned order dated 26.8.2017 and to remand the case to the learned Tribunal.
13. Therefore, the order dated 26.8.2017 is hereby set aside. The case is remanded to the learned Tribunal. The learned Tribunal is directed to hear both the parties. Parties shall be free to canvas their arguments with regard to the relative merit of the case. The learned Tribunal is directed to decide the application filed by the respondent within a period of two weeks from the date of receipt of the certified copy of this order.
No order as to costs.
ckl Sd/- JUDGE